Crl.Misc.No.649-MA of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Misc.No.649-MA of 2008
DATE OF DECISION: JANUARY 30, 2009
State of Haryana
.....APPELLANT
Versus
Satbir and others
....RESPONDENTS
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
Present: Mr.P.S. Sullar, DAG, Haryana,
for the applicant-appellant.
..
SATISH KUMAR MITTAL, J.
The State of Haryana has filed this application under Section
378(3) of the Code of Criminal Procedure for grant of leave to appeal from
the judgment of acquittal dated 28.8.2008 passed by the Additional Sessions
Judge, Gurgaon in Sessions Case No.16 of 4.6.2008/12.12.2006 titled as
“State Versus Satbir and others” arising from FIR No.485 dated 12.9.2005
under Sections 307/120-B IPC and 25/54/59 of the Arms Act, Police Station
Sadar, Gurgaon.
In the present case, the aforesaid FIR was registered on the
basis of the statement made by PW5-Ajay Kumar, resident of village Palda
in which it was alleged that on the date of the occurrence i.e. 11.9.2005
around 6.30 p.m., he along with PW10-Narpat (injured) was going on
motorcycle to South City to deliver VCD at the shop of their friend
approximately at 6.50 p.m. When they went towards park, then at that time
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two unknown assailants, who were following them on motorcycle, came
behind, and when they tried to escape towards the market, Narpat received
bullet shots from behind and then from front side, and thereafter, the said
assailants ran towards the market. The complainant took the injured to the
hospital.
The injured remained hospitalised up to 22.9.2005. During his
stay in the hospital, the statement of the injured was recorded on 15.9.2005.
In the said statement, the injured did not give the name of any assailants. He
had only stated that three unknown persons after firing gun shot at him ran
away on Honda motorcycle. However, in that statement, he had stated that
Dalip son of Jagmal, Suman wife of Shyam Bihari, Batni son of Raghubir
and Bobby son of Om Parkash hatched a conspiracy to kill him after giving
a sum of Rs.5 lacs to the unknown assailants.
During investigation, the second statement of the injured was
recorded on 18.1.2006. In that statement, for the first time, the injured
disclosed the names of Ravinder and Satbir as assailants. Subsequently,
another supplementary statement of the injured was recorded under Section
161 Cr.P.C. on 9.8.2006 in which he also named Anil as the third assailant.
After the investigation, accused Bobby, Batni and Suman were
found innocent and challan was filed against Dalip, Satbir, Ravinder and
Anil. On finding prima-facie case, accused Dalip, Satbir, Ravinder and Anil
were charge-sheeted under Section 307 read with Section 120-B IPC and
accused Ravinder in addition was charged for the commission of offence
punishable under Section 25 of the Arms Act. The accused pleaded not
guilty to the charges and claimed trial.
In order to prove its case, the prosecution examined 21
witnesses. The complainant Ajay Kumar did not support the prosecution
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version at all. Thereafter, the statement of the accused was recorded under
Section 313 Cr.P.C., who pleaded false implication. In defence, the accused
examined Shri Harish Dutta, ACP as DW1.
After taking into consideration the evidence led by the
prosecution as well as the defence and appreciating the same, the trial court
acquitted all the four accused while coming to the conclusion that
prosecution has failed to prove the alleged offence against the accused
beyond reasonable doubt. It has been held that in the initial version of the
complainant the names of the assailants were not given. Similarly, when the
statement of the injured was recorded on 15.9.2005, he did not give the
names of any assailants. He categorically stated that three unknown
assailants after firing gun shot at him ran away on Honda motorcycle. On
that date, he has only named that Dalip son of Jagmal along with other
accused hatched a conspiracy to kill him. The second statement was
recorded on 18.1.2006 in which the injured named Ravinder and Satbir as
accused and on the third statement, which was recorded after near-about one
year, the name of Anil was mentioned as one of the accused. The trial court
has come to the conclusion that initially the names of Ravinder, Satbir and
Anil were not mentioned whereas it has come on record that accused
Ravinder and Satbir are the residents of village of the injured. Therefore, it
cannot be said that those two accused were not known to him. The trial
Court has also noticed that it has also come in evidence that accused Anil
was known to the injured prior to the date of occurrence, but his name was
mentioned by the injured near-about after one year of the alleged
occurrence. All these facts create a doubt in the mind of the trial Court.
The learned trial Court has further come to the conclusion that
there is absolutely no incriminating evidence available on the record against
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accused Dalip for the commission of the alleged offence. In this regard, it
has been noticed that some complaint was filed by the members of the
family of Dalip against injured Narpat and on account of the said complaint,
in order to settle his old score, the name of accused Dalip was mentioned by
injured Narpat. It has also come on record that accused Dalip and injured
Narpat were challaned by the police under Sections 107/151 Cr.P.C. It has
been further noticed that on an application moved by Dalip, the matter was
inquired into by DW1-Harish Kumar Dutta, ACP and during that enquiry
Dalip was found innocent.
Further the complainant PW5-Ajay Kumar has not supported
the prosecution version regarding identification and involvement of the
accused for the alleged offence. He was declared hostile and in his cross-
examination he has totally denied the presence of accused facing trial at the
time of the alleged occurrence in which injured Narpat received injuries.
The said witness has also admitted that accused Satbir and Ravinder were
residents of their village. The learned trial Court has come to the conclusion
that when PW5 did not support the prosecution version, the only remained
evidence was the statement of injured Narpat, which was held to be not
trustworthy, because on three occasions he gave different statements. It has
been held that on the basis of the sole statement of injured Narpat, without
any further corroboration, the conviction cannot be based. By taking into
consideration all these facts and circumstances, the trial Court has acquitted
the accused for the offence under Section 307 read with Section 120-B IPC.
As far as the offence under Section 25 of the Arms Act is
concerned, the trial Court has come to the conclusion that the prosecution
has fully proved the recovery of fire-arm from accused Ravinder. For that,
he was convicted for the offence under Section 25 of the Arms Act and
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sentenced to undergo rigorous imprisonment for the period which he had
already undergone and to pay a fine of Rs.2500/-.
After hearing the counsel for the applicant and going through
the impugned judgment, we do not find any ground to grant leave to appeal.
The trial Court in detail has appreciated each and every evidence led by the
prosecution and thereafter came to the conclusion that those evidence was
not sufficient to convict the accused for the offence under Section 307 read
with Section 120-B IPC. In our opinion, no different view is possible from
the evidence available on record, as has been taken by the trial Court. The
trial Court has rightly not relied upon the evidence of injured Narpat, the
only evidence, keeping in view various contradictions in his stand and other
factors, particularly when all the accused were the residents of his village,
but they were not named in the initial version given by injured Narpat.
Merely because he had stated that he remained under threat, therefore, he
did not disclose their names, has rightly not been believed by the trial Court,
particularly when the injured was not a normal man but was a police official
who had joined police in the year 1988. PW15-ASI Ram Kumar,
Investigating Officer also admitted in his cross-examination that injured
Narpat and Ajay Kumar had stated before him that assailants were some
unknown persons and they were not residents of village Palda.
Thus, we do not find any ground to grant leave to appeal.
Dismissed.
(SATISH KUMAR MITTAL)
JUDGE
January 30, 2009 ( DAYA CHAUDHARY )
vkg JUDGE