State Of Haryana vs Krishan

State of Haryana ...Appellant

Versus

Krishan ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Punjab and Haryana High Court holding that the respondent deserves

to be acquitted and the judgment of conviction and sentence as recorded by

learned Additional Sessions Judge, Bhiwani is not correct. It is to be noted

that learned Sessions Judge had found the respondent guilty of offence

punishable under Section 304 of the Indian Penal Code, 1860 (in short the

1 `IPC') and was sentenced him to rigorous imprisonment for 10 years and

fine with default stipulation. However the two co-accused persons Jai

Bhagwan and Anant Ram were acquitted.

2. Background facts as projected by the prosecution are as follows:

On 22.3.1989, it was PHAG festival. PW-4 Sher Singh, brother of

Nafe Singh (PW-3) had gone to the Bazar for playing PHAG. However,

Nafe Singh (PW-3) and his father Chandgi Ram (hereinafter referred to as

the `deceased') remained at the house.

Naresh Kumar, nephew of Nafe Singh, visited them at about 3 pm and

informed that Sher Singh (PW 4) had been beaten by carpenters of their

village. On receipt of this information, PW-3 Nafe Singh alongwith his

father Chandgi Ram went towards the houses of carpenters. His father was

ahead of him, while he was following him. When they reached near the shop

of Jai Singh, then he started talking with Jai Singh while Chandgi Ram went

ahead. Chandgi enquired from the carpenters about the whereabouts of Sher

Singh, PW-4, upon which carpenters lost temper. Anant Ram and Jai

Bhagwan, accused (now acquitted) caught hold of Chandgi Ram from his

2 arms while Krishan, appellant, inflicted a Lathi blow, on the head of

Chandgi Ram. On. receipt of the Lathi blow, he fell down and the appellant

alongwith co-accused ran away. The occurrence was witnessed by Nafe

Singh and Jai Singh.

In the meantime, Harish also appeared. Chandgi was put into a tempo

and was taken to civil hospital, Dadri, where he was admitted and was

medico-legally examined. The police reached the hospital. Nafe Singh

made statement, Ex.PL, to Inder Singh Saini, Sub Inspector (PW-5) which

was signed after admitting the same to be correct. Inder Singh Saini (PW-5)

made endorsement Ex.PL/1 and sent it to the police station for registration

of the case, on the basis of which formal FIR, Ex.PL/2 was recorded by

Dalip Singh, Sub Inspector.

Inder Singh Saini SI (PW-5), then went to the place of occurrence but

none was found there and he stayed in the village. On the next day i.e. on

23.3.1989, he called Chowkidar and Jai Singh also came there and on the

pointing out of Jai Singh, he took blood stained earth from the spot after

making it into a sealed parcel vide memo Ex.PM attested by the witnesses.

He also recorded the statement of Sher Singh (PW-4) who had come there

and sent him for his medico-legal examination to Civil Hospital Dadri.

3 At about 8 a.m., he received Ruqa through constable Ram Pal,

informing him about the death of Chandgi and then he converted the

offence into 302 IPC. He went to Civil Hospital, Dadri, and prepared

inquest report, Ex.PG, and got conducted postmortem on the dead body of

Chandgi. Head constable Parkash Chand handed over one packet to him,

which he took into possession vide Memo Ex.PM. He recorded the

statements of the witnesses. He apprehended the appellant and his two

companions on 27.3.1989. He interrogated the appellant and in pursuance

of his disclosure statement, Ex.PQ, recovered Lathi, Ex.P3, which was

made into a sealed parcel and was taken into possession. Before taking into

possession, he prepared rough sketch of the Lathi, Ex.PS and also a site

plan of the place of recovery, Ex. PT.

As the accused persons pleaded innocence, trial was held.

Prosecution examined six witnesses. One Jai Singh was given up as he was

supposed to won over. The trial court placed reliance on the evidence of

PW 3 and directed conviction as recorded above.

4 In appeal the High Court found that there were several factors which

made the prosecution version unreliable. It was noted that the First

Information Report was purportedly lodged on 22.3.1989 but the same was

received by the Illaqa magistrate after a long time i.e. on 24.3.1989 though

the court of the Illaqa magistrate was situated at less than half a kilometer.

Additionally the number of injuries as stated by the so called eye witness,

PW3 was at great variance with the medical evidence. It also noted that the

medical examination conducted at 3.30 P.M. by Dr. M.M. Sharma, PW 1

showed that the injuries were caused within a duration of 6 to 12 hours. His

specific evidence was that the deceased could have received the injuries at

about 10 AM on 22.3.1989 and he had not received injuries within six

hours. According to the prosecution version the occurrence took place at

3.30 PM and the medico legal examination was done at 5.30 pm.

3. Learned counsel for the appellant State submitted that the factors

highlighted by the High Court to direct acquittal have no foundation.

4. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

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5. There is no embargo on the appellate court reviewing the evidence

upon which an order of acquittal is based. Generally, the order of acquittal

shall not be interfered with because the presumption of innocence of the

accused is further strengthened by acquittal. The golden thread which runs

through the web of administration of justice in criminal cases is that 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. The paramount consideration

of the court is to ensure that miscarriage of justice is prevented. A

miscarriage of justice which may arise from acquittal of the guilty is no less

than from the conviction of an innocent. In a case where admissible

evidence is ignored, a duty is cast upon the appellate court to re-appreciate

the evidence where the accused has been acquitted, for the purpose of

ascertaining as to whether any of the accused really committed any offence

or not. (See Bhagwan Singh v. State of M.P, 2003 (3) SCC 21). The

principle to be followed by the appellate court considering the appeal

against the judgment of acquittal is to interfere only when there are

substantial reasons for doing so. If the impugned judgment is clearly

unreasonable and irrelevant and convincing materials have been

unjustifiably eliminated in the process, it is a substantial reason for

6 interference. These aspects were highlighted by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793), Ramesh

Babulal Doshi v. State of Gujarat (1996 (9) SCC 225), Jaswant Singh v.

State of Haryana (2000 (4) SCC 484), Raj Kishore Jha v. State of Bihar

(2003 (11) SCC 519), State of Punjab v. Karnail Singh (2003 (11) SCC

271), State of Punjab v. Phola Singh (2003 (11) SCC 58), Suchand Pal v.

Phani Pal (2003 (11) SCC 527) and Sachchey Lal Tiwari v. State of U.P.

(2004 (11) SCC 410).

6. Though some of the factors highlighted by the High Court may not

create a dent in the prosecution version but the cumulative effect certainly

casts a shadow upon the credibility of the prosecution version. The view

taken is a possible view. Therefore no interference is called for.

7. Appeal is dismissed.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (C.K. THAKKER) New Delhi:

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November 7, 2008

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