Ganpat vs State Of Haryana & Ors

Ganpat .... Appellant(s)

Versus

State of Haryana & Ors. .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) These appeals are directed against the common

judgment and final order dated 01.05.2001 passed by the High

Court of Punjab & Haryana at Chandigarh in Criminal Appeal

Nos. 647 and 657 of 2000 and Criminal Revision Petition No.

475 of 2000 whereby the High Court allowed the appeals and

acquitted all the eleven accused persons of the charges framed

against them and dismissed the Criminal Revision filed by the

appellant herein.

2) The case of the prosecution is as under:

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(a) Four-five days prior to the date of occurrence i.e.

25.10.1992, there was a dispute between Mohinder Singh PW-

13, who is the son of Shambhu (the deceased) and Madan Lal

and Sat Pal, the accused, who used to run Kiryana shop in the

village, over payment of price of crackers. But, later on, the

dispute was settled between them with the intervention of

villagers and Mohinder Singh paid an amount to the accused

as the price of the crackers.

(b) On 25.10.1992, at about 9.00 p.m., when Mohinder

Singh, after having meals, was going to his Garhi (outer

house), he found eight persons, namely, Sat Pal, Pala Ram,

Madan Lal, Jai Kumar, Ram Prakash, Rajesh, Ram Bhaj and

Jai Singh standing there and they were armed with gandasis

and lathis. Sat Pal raised a lalkara that Mohinder Singh

should be taught a lesson for making less payment for

crackers and he gave a gandasi blow on his right leg.

Mohinder Singh shouted for help and on hearing the same,

Ishwar - his brother came there. Pala Ram gave gandasi

blows repeatedly from its reverse side on Ishwar's chin and

jaw and Madan Lal gave two lathi blows on his face and Jai

2 Kumar gave lathi blows on his hands and chest. On hearing

the calls for help, Shambhu-the deceased came to the spot.

Rajesh and Ram Bhaj, who were standing in front of the house

of Chandan came there with lathis and Ram Bhaj gave a lathi

blow on the head of Shambhu and Rajesh gave a lathi blow on

his legs. In the meantime, Ishwar's wife - Murti Devi also

came there and Naresh and Jai Singh gave lathi blow on Murti

Devi.

(c) Ganpat (PW-12)-the complainant (appellant herein), who

was standing at a distance of 10 yards from the place of

occurrence, shouted "Naa Maro Naa Maro". Thereafter,

Ganpat brought a tractor from his house with the help of his

son Shri Pal for taking the injured to the hospital. When they

were lifting the injured persons, Mohan Lal gave one gandasi

blow on his right arm and Rajesh gave a lathi blow on the

back of his right hand palm and Ram Prakash gave a lathi

blow on his left shoulder. Thereafter, Shri Pal, Chappa and

Satta and other persons came there and rescued them and all

the injured persons were taken to Primary Health Centre,

Nissing. Dr. Sanjiv Grover, PW-3 examined the injured

3 persons. Ishwar and Shambhu were referred to General

Hospital, Karnal. Thereafter, Mohinder Singh and Murti Devi

were also referred to the same hospital. Dr. Sanjiv Grover sent

the ruqa to the in-charge, Police Station, Nissing on

26.10.1992 at 00:10 a.m. but due to inadvertence he

mentioned the time as 12:10 a.m. On receipt of ruqa, ASI

Ram Karan - PW-14 went to Primary Health Centre to inquire

about the condition of the injured and came to know that the

injured persons have been referred to General Hospital,

Karnal. Then, on 26.10.1992, at 01:15 p.m., the ASI recorded

the statement of Ganpat-the appellant herein in General

Hospital, Karnal and a case was registered and a formal FIR

was recorded at 2:30 p.m. under Sections 148, 149, 323, 324,

325 Indian Penal Code (hereinafter referred to as `IPC'). He

could not record the statement of Shambhu as he was not fit

for making statement. After taking the clothes of the injured

persons into possession, he went to the scene of occurrence

and prepared rough site plan and lifted blood stained earth.

Thereafter, the accused were arrested and the weapons were

also recovered.

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(d) On 09.11.1992, Shambhu died and the case was

converted to that under Sections 148, 302, 323, 324, 325 read

with Section 34 Indian Penal Code (hereinafter referred to as

"IPC"). On 12.03.1993, challan was filed by the police in the

Court, mentioning only the names of four accused out of the

11 accused, whose names were mentioned in the FIR. On

09.04.1993, Ganpat (PW-12), the appellant herein filed an

application under Section 319 of the Criminal Procedure Code

(hereinafter referred to as "Cr.P.C.") for summoning the other

seven accused. The trial Court, vide order dated 12.05.1993,

allowed the application and summoned the other seven

accused persons to face trial along with the four accused.

Vide order dated 22.03.1994, the trial Court ordered for

framing of charges against all the 11 accused persons for

offences under Sections 148, 302, 325, 324, 323 read with

Section 149 IPC.

(e) The prosecution examined 15 witnesses. After recording

the evidence, the trial Judge convicted Pala Ram, Sat Pal

Madan Lal, Ram Prakash, Rajesh, Ram Bhaj and Jai Kumar

for the offence under Section 148 IPC and sentenced them to

5 undergo rigorous imprisonment for two years and to pay a fine

of Rs.1000/- each, in default of payment of fine, each of them

was ordered to undergo further rigorous imprisonment for

three months. They were further convicted under Section 302

read with Section 149 IPC and sentenced to undergo rigorous

imprisonment for life. They were also convicted under Section

325 read with Section 149 IPC and were sentenced to undergo

rigorous imprisonment for two years and to pay a fine of

Rs.1000/- each. In default of payment of fine, each of them

was ordered to undergo further rigorous imprisonment for

three months. All of them were further convicted under

Section 324 read with Section 149 IPC and sentenced to

undergo rigorous imprisonment for six months and further

they were convicted under Section 323 read with Section 149

IPC and each of them was sentenced to undergo rigorous

imprisonment for four months. Mohan Lal was convicted

under Section 324 IPC and sentenced to undergo rigorous

imprisonment for six months, Naresh, Ramesh Chand and Jai

Singh were convicted under Section 323 IPC and were

sentenced to undergo rigorous imprisonment for four months.

6 The substantive sentences of imprisonment were ordered to

run concurrently.

(f) Against the abovesaid order, Jai Singh, Ramesh, Naresh

and Mohan Lal filed Criminal Appeal No. 647 of 2000 and Pala

Ram, Sat Pal, Madan Lal, Ram Prakash, Rajesh, Ram Bhaj

and Jai Kumar filed Criminal Appeal No. 657 of 2000 and

Ganpat- the complainant and the appellant herein filed

Criminal Revision Petition No. 475 of 2001 before the High

Court of Punjab & Haryana for not holding guilty four of the

eleven accused, namely, Jai Singh, Ramesh, Naresh and

Mohan Lal under Sections 302/149 IPC. Vide judgment dated

01.05.2001, the High Court allowed the appeals and acquitted

all the eleven accused persons and dismissed the criminal

revision petition filed by the appellant herein. Challenging the

judgment of the High Court, the appellant/complainant has

preferred these appeals by way of special leave petitions.

3) Heard learned counsel for the appellant as well as the

respondents.

4) The only point for consideration in these appeals is

whether there is any ground for interference against the order

7 of acquittal by the High Court. This Court has repeatedly laid

down that the first appellate court and the High Court while

dealing with an appeal is entitled and obliged as well to scan

through and if need be re-appreciate the entire evidence and

arrive a conclusion one way or the other.

5) The following principles have to be kept in mind by the

appellate court while dealing with appeals, particularly,

against an order of acquittal:

(i) There is no limitation on the part of the appellate court to

review the evidence upon which the order of acquittal is

founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court's

conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is

the duty of the appellate court to marshal the entire evidence

on record and by giving cogent and adequate reasons may set

aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when

there are "compelling and substantial reasons" for doing so. If

8 the order is "clearly unreasonable", it is a compelling reason

for interference.

(v) When the trial court has ignored the evidence or misread

the material evidence or has ignored material documents like

dying declaration/report of ballistic experts, etc. the appellate

court is competent to reverse the decision of the trial court

depending on the materials placed. [Vide Madan Lal vs. State

of J & K, (1997) 7 SCC 677, Ghurey Lal vs. State of U.P.,

(2008) 10 SCC 450, Chandra Mohan Tiwari vs. State of

M.P., (1992) 2 SCC 105, Jaswant Singh vs. State of

Haryana, (2000) 4 SCC 484].

6) With these principles, let us examine whether

interference is required in the impugned order of the High

Court acquitting all the eleven accused. It is not in dispute

that the incident occurred on the night of 25.10.1992. Among

several witnesses examined on the side of the prosecution,

material witnesses relied on by the trial court and the High

Court are:

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Ganpat PW-12/complainant/appellant herein, Mohinder

Singh PW-13, Investigation Officer PW-14 and Dr. Sanjiv

Grover PW-3, who treated injured witnesses/accused.

7) Before the trial court as well as the High Court, the

accused took up the plea that they were innocent and there

was danger to their life and the complainant party was the

aggressor. We have already adverted to the relevant fact that

there was dispute between the accused and the complainant

party regarding the payment of price of crackers. A Panchayat

was convened and the amount of the price of crackers was

fixed by the Panchayat and still Mohinder Singh was

demanding the price and he himself used force and caused

harm to the accused party. We perused the evidence of PWs

12 and 13. It is true that both of them sustained injuries in

the clash. According to them, the accused had inflicted

injuries on them and blamed them for being the aggressor and

having caused the death of Shambhu and for inflicting injuries

to others. A perusal of the oral testimony of Ganpat PW-12

who was confronted with his statement made before the police

wherein he had not mentioned the names of seven persons

10 who is said to have participated in the commission of the

crime. The only explanation for omission of those names was

that of nervousness. It is useful to refer that the very same

person who made a complaint to the police mentioned all the

names of the accused persons assigned specific role for each

one of them.

8) We also verified the statement of Mohinder Singh PW-13

wherein he claimed that Ganpat PW-12 reached the spot when

he and Ishwar had already received the injuries. This also

makes the presence of PW-12 at the spot to be doubtful.

Though PW-13 has denied the suggestion that he was under

the influence of alcohol at the time of occurrence the same was

falsified by the version of Dr. Sanjiv Grover PW-3. In his

statement, he has noted that the injured Mohinder Singh was

under the influence of alcohol at the time of first arrival.

9) It is also clear from the evidence of prosecution witnesses

as well as the defence that Satpal A2, Madan Lal A-3, Jai

Kumar A-11 also sustained injuries. Among these persons, A-

2 sustained grievous injuries by the use of ghandasa. There is

no proper explanation by the prosecution about the injuries

11 sustained by the accused. Further, there is no definite

evidence as to the place of occurrence. It is also relevant to

note the statement of accused Satpal A-2 recorded under

Section 313 of the Cr.P.C. After denying several questions, as

regard to the last question about the alleged incident as set

out by the prosecution, he explained before the Addl. Sessions

Judge on 15.07.2000. The relevant question and answer is as

follows:-

"Q.20. Have you to say anything else?

Ans. The facts of this case are that on the day of occurrence Mohinder PW came at the house of Jai Kumar in drunken condition and started abusing him. I and Madan were also present there being his nephew and also on account of Diwali festival. Jai Kumar and his wife stopped them from abusing and thereafter Mohinder PW went back and after sometime he came along with Shambu deceased, Ganpat and Ishwar Singh. Mohinder PW gave a gandasi blow on my head and I fell down on the ground. Thereafter Jai Kumar and his wife Kitabo Devi came forward to save me and then all of them started causing injuries to them as well as to Madan Lal and me. Jai Kumar etc. also caused injuries to the complainant in their self defence. Initially I, Pala Ram, Madan Lal and Jai Kumar were challaned and remaining accused were found to be innocent because all the eye witnesses including the complainant Ganpat and injured witnesses related to deceased, had stated in their statement under section 161 Cr.P.C. that only four persons i.e. myself, Pala Ram, Madan and Jai Kumar were responsible for the death of Shambu and remaining accused were not named by them at all. The matter was placed before Panchayat also in which the complainant party had admitted that seven persons have been wrongly named. In fact the complainant party was aggressor and they entered the house of Jai Kumar and caused injuries to me, Madan, Jai Kumar and Kitabo Devi."

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10) If we consider the above assertion by A-2 and the

evidence of PWs 12, 13 as well as Dr. Sanjiv Grover PW-3

about the injuries sustained by the persons belonging to the

complainant's and accused party, the conclusion of the High

Court that the complainant party was the aggressor cannot be

ignored.

11) It is also relevant to note the evidence of I.O. PW-14. His

evidence shows that after the occurrence when he visited the

hospital, he noticed not only the injured witnesses but also the

injured accused. He admitted that Madan Lal A-3 and Satpal

A-2 have sustained injuries and he also admitted that he had

not recorded their statement as to in what manner they

sustained injuries. Though he answered that they refused to

make statement, admittedly he had not taken any action

against them for refusing to make statements.

12) From the analysis of the statement of prosecution

witnesses PWs 12, 13, various details about the injuries

sustained by the prosecution witnesses as well as the accused

spoken to by Dr. PW-3, categorical assertion of Satpal A-2 in

respect of question No. 20 under Section 313 of the Cr.P.C.,

13 conduct of I.O. PW-14 in not recording statement of the

injured accused who were also present in the same hospital

when he visited to record the statement of injured complainant

party, it is clear that two groups of people clashed inter se with

weapons causing injuries to each other, we hold that the

complainant party was the aggressor and in the absence of

definite material and explanation from the prosecution side,

the High Court is right in acquitting all of them.

13) In the light of the above discussion, we find no merit in

the appeals. On the other hand, we are in entire agreement

with the conclusion arrived at by the High Court.

Consequently, all the appeals are dismissed.

..........................................J. (P. SATHASIVAM)

...........................................J. (R.M. LODHA) NEW DELHI;

SEPTEMBER 27, 2010.

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