RAM KUMAR versus THE STATE OF HARYANA

9. On the same day Dr. Gandhi had examined Karnla, PW 3 at 11 AM and found the following injury on her person :- "A lacerated wound 2cm x 2cm x cavity deep over chest back of left side, just below the lower and of scapula with irregular margins. The margins of the wound were inverted. There was also cor- responding hole over the sweater, shirt and banian with blood stains. There was a burn mark over the sweater in the hole." In the opinion of the doctor the probable duration of the injury was within 24 hours caused by a firearm. After X-ray fracture of 8th rib was detected F and foregin body was present on the left side chest.

10. After the occurrence the accused persons could not be ap- prehended and it was only on 27.9.84 after about 9 months that the 1 Inspector Om Prakash, DSP Kirpal Singh and AS! Krishan Chand ap- prehended the accused Nanu, the appellant Ram Kumar and Hazari while G going to Bhatookala from Adampur. At the time of arrest the co-accused Nanu was carrying a 12 bore licensed gun seized as per Ext. P-20 with two cartridges Ext. P-21 and P- 22. The appellant Ram Kumar was carrying a pistolP-23 and 2.live cartridges Ext. P-24 andP-25, while acquitted accused Hazari was carrying a pistol Ext. P-26 and 3 live cartridges Exts. P-27, P-28 H and P-29. After receiving the reports of the Ballistic Expert and Serologist charge sheet against the accused Nanu, the appellant Ram Kumar and Hazari was put up to stand the trial under Sections 302, 302/34 and 307 /34 of the Penal Code as well as under Section 25/27 of the Arms Act. Later on by an application dated 14.2.85 filed by the complainant Kamla, PW 3, 4th accused Santlal was also summoned by the Sessions Judge by his order dated 28.2.85 to stand the trial alongwith the above named accused per- sons.

11. At the trial the appellant as well as the other accused persons adjured their guilt and pleaded false implication. They also adduced C evidence in defence vide DW 1, Parmanand, DSP Fatehabad who had inspected the spot on 25.12.83 and L.A. Kumar, DW 2, Assistant Director Ballistics, F.S.L. Madhuban, Karna!.

12. On 7.5.85 the Public Prosecutor gave up some of the prosecution D witnesses including Pappu, Dalip, Ranbir and Sobania! as according to the prosecution they were won over. But after the close of the evidence when arguments were heard the learned Trial Judge found it expedient to examine the aforementioned persons given up by prosecution as according to the learned Trial Judge they were the eye witnesses to the incident and could throw light on the prosecution case and, therefore, Pappu, CW 1, E Dalip, CW 2, Ranbir, CW 3 and Sobania!, CW 4 were examined as Court witnesses. The appellants were again given an opportunity to adduce further evidence in defence and the accused persons examined Shri J.C. Sethi, DW 3, an advocate who had filed a criminal complaint on behalf of Ram Pratap, the father of deceased Mahinder against Harchand and others under Sections 302/148, 149 and 304 of the Penal Code.

13. On evaluation of the entire evidence and the material on record the learned Trial Judge acquitted the appellant as well as the three co-accused, namely, Nanu, Hazari Lal and Santlal holding that the state- ment Ext. PG said to have been made by Kamla, PW 3 in the hospital to G AS! Bhana Ram, PW 6 was ante-timed, there was unexplained delay of 32 hours in sending the report to the Magistrate concerned, the inquest reports were also not prepared at the alleged time, AS! Bhana Ram, PW 6 did not mention in the inquest reports the location of the empties found lying by the side of the dead bodies and that the deceased Om would not H have been fired from close range as deposed by Kamla, PW 3. On these R.KUMARv.STATEOFHARYANA[FAIZANUDDIN,J.] findings the learned Trial Judge took the view that the prosecution had A failed to bring home the ~t against any of the accused persons including the. appellant and, therefore, acquitted them· all from the offences they were charged with.

14. The State of Haryana preferred an appeal against the judgment B and order of acquittal. The co-accused Nanu Ram died during the pen- dency of the appeal before the High Court and, therefore, the appeal against him abated. The High Court maintained the acquittal of the co-ac- cused Hazari and Santlal but reversed and set aside the findings with regard to the co-accused Nanu Ram and the appellant. The High Court took the view that the co-accused deceased Nanu Ram was liable to be C convicted under Sections 302 and 302/34 for causing death of Om and Mahinder and also under Section 307/34 for causing injuries to Karnla and Rajinder but since he died on 25.10.90 the appeal against him had abated. The appellant Ram Kumar has been convicted under Section 302/34 of the Penal. Code for causing the death of Om and, therefore, he has been D sentenced to undergo life imprisonment and to pay a fine of Rs. 5000; in default of payment of fine to undergo further rigorous imprisonment for two years. The High Court has further directed that in case of recovery of fine the same will be paid to the heirs of deceased Om. The appellant has been further convicted under Section 307/34 of the Penal Code on two counts for causing injuries to Kamla, PW 3 and her son Rajinder, PW 4 E for which he has been sentenced to undergo rigorous imprisonment for three years on each count. All the sentences had been directed to run concurrently. It is against these convictions and sentences that the appel- lant Ram Kumar has preferred this appeal before this Court.

15. Learned counsel for the appellant contended that the Trial Court had recorded the order of acquittal of all the accused persons including the appellant giving sound and cogent reasons for disbelieving the prosecu- tion case and, therefore, the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out G that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court H A with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based B its order acquittin~ the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the con· C clusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterised as perverse.

16. Learned counsel appearing for the appellant first contended that D the First Information Report Ext. PG/2 was ante-timed as held by the learned Trial Judge which demolishes the entire prosecution story but the said finding has been unreasonably disturbed by the High Court. We have perused the relevant evidence and the material on record in this· behalf and find that the learned Trial Judge had fallen in serious error in rejecting the First Information Report by holding that it was unduly delayed and ante· E timed. It is no doubt true that there was some delay in lodging the First Information Report. But it may be noted that the incident had occurred at about 7 .30 PM on 23.12.83 and the report Ext. PG was made by Smt. Kamla, PW 3 next day i.e. 24.12.83 at 10.30 AM to AS! Bhana Ram, PW 6 while she was in Civil Hospital, Adampur. But this delay has been p adequately explained by the prosecution which has not been appreciated by the learned Trial Judge in right perspective. As stated earlier the occurrence took place in the evening of 23.12.83 in the out-skirts of village Dhand and the Police Station, Adampur is at a distance of about 18 kms. from village Dhand. Admittedly the injured Smt. Kamla, PW 3 is a widow having four minor children one of whom was also injured in the occurrence. G After she and her son Rajinder, PW 4 received bullet injuries they saved their lives by taking shelter in the house of one Chhabila. There was no other major male member in her family except her two minor sons and the only male member in the family was the accused Nanu since deceased. Om who had gone with her for ploughing the land and Mahinder the driver of H the tractor, both were killed in the occurrence. In such circumstances it R.KUMAR.: STATEOFHARYANA[FAIZAN UDDIN,J.] could not be expected from a widow and injured lady Kamla without risk A to her life to proceed to Police Station in the dead of night and that too in the winter season to lodge the report. She was thus forced by the circumstances not to hazard to go and make the report same night in order to avoid the delay. Next morning, however, at about 8/8.30 AM she hired the jeep and proceeded from the village alongwith her injured son B Rajinder, PW 4 and the other son Dharambir and reached the Primary Health Centre, Adampur at about 10.30 AM where Kamla, PW 3 and her injured son Rajinder, PW 4 were medically examined by Dr. J.M. Gandhi, PW 2 at 10.30 and 11 AM respectively. In response to the intimation sent by Dr. Gandhi to the Station House Officer, Adampur, the AS! Bhana Ram, PW 6 arrived at the Health Centre at about 10.30 AM on 24.12.83 C and recorded the statement Ext. PG of Smt. Kalnl.a, PW 3 at 11.30 AM on the basis of which First Information Report Ext. PG/2 was recorded in the Police Station and offence was registered. The learned Trial Judge totally oblivious of all these facts and circumstances which led to the delay in making the First Information Report, took a very hyper-technical and D unrealistic view in holding that the delay was not explained ignoring the relevant reasons and attending circumstances by reason of which the report was delayed. The High Court took into consideration all these factors and took a realistic view that the delay was sufficiently explained and, in our opinion rightly so.

17. The reasons which weighed with the learned Trial Judge in holding that the report was ante-timed are that the maker of the report Kamla, PW 3 did not know that Om and Mahinder had died as she made no inquiries as to what had happened to them after the firing and whether they were dead or alive yet she.stated in the report Ext. PG that Om and F Mahinder had died. The learned Trial Judge also observed. that while taking shelter in the night in the house of Chhabila she did not ascertain the condition of Om and Mahinder and had not established any contact with them before making the report yet she made a statement in the report that they were dead and this fact according to the learned Session Judge G was indicative of the fact that the report was ante-timed. In our opinion the view taken by learned Session Judge is absolutely unreasonable and devoid of logic and, therefore, the High Court was justified in reversing this finding as well for the reason that Kamla had left the village Dhand for the Primary Health Centre, Adampur at about 8.30 AM and by that time it was known to all the villagers including Kamla that Om and H A · Mahinder had succumbed to their bullet injuries. There was, therefore nothing unusual in the report in which Karola stated that Om and Mahinder both had died in the occurrence having received bullet injuries.

18. The learned counsel for the appellant then urged that the special report of the occurrence was not sent to the Magistrate concerned forthwith in accordance with the provisions of Section 157 of the Code of Criminal Procedure which also cast a doubt on the First Information Report as to the time and manner of occurrence. In this connection it may be noted that the report was received by the Magistrate concerned at about 2.30 AM on 25.12.83 which was sent through the Constable Satya Pal, PW C 7. Satya Pal deposed that he first went to Fatehabad. He delivered the special report to the Superintendent of Police at 8.00 AM as Superinten- dent of Police was not available before 8.00 AM and, therefore, he had to wait till then. He then proceeded to Hissar from Fatehabad to deliver the report to the Magistrate concerned. When he reached Hisar he found the D house of Chief Judicial Magistrate locked. He then went to the Police Station, Sadar where he learnt that Mrs. Snehlata Sharma was the Duty Magistrate and, therefore, he reached her residence at 2.30 AM and delivered the report. Under these facts and circumstances it could not be said that the sending of the report was unduly delayed. Even if we assume that there was some delay it was on account of constable Satya Pal, PW 7. E The learned counsel appearing for the appellant was unable to point out any possible prejudice that may have been caused to the appellant par- ticularly when the statement of Karola was recorded at 10.30 AM and on the basis of which First Information Report was also reduced into writing at 11.30 AM on 24.12.83. The AS! Bhana Ram, PW 6 had reached the place of occurrence and the inquest report of both the dead bodies were also prepared on 24.12.83 and seizure of incriminating articles were ef- fected.

19. Learned counsel for the appellant next contended that the learned Trial Judge had rejected the evidence of Smt. Karola, PW 3 and G her son Rajinder, PW 4 having found the same contradictory to each other having concealed the true version from the Court and their testimony was inconsistent with the medical evidence and Ballestic Expert but the High Court committed a grave error in accepting their version as truthful in basing the convictions of the appellant. It was submitted that in fact it had become dark at the time when the occurrence took place and there being R.Kl)MARv. STATEOFHARYANA[FAIZANUDDIN,J.] no source of light it was not possible for the said witnesses to identify the A assailants and they had falsely implicated the accused persons including the appellant. Learned counsel further urged that in any case there were independent witness who were withheld by the prosecution and who were ultimately examined as Court witnesses and thus prosecution preferred only to examine the partisan witnesses who had a clear motive to falsely B implicate the appellant and, therefore, the Trial Court was justified in rejecting their. evidence. After giving a careful consideration to the submis- sions made by the learned counsel for the appellant and after making a close and careful scrntiny of the evidence of Smt. Kamla, PW 3 and her son Rajinder, PW 4 besides other evidence available on record, we find that all the aforementioned submissions advanced by the learned counsel C for the appellant are without any substance or merit.

20. Smt. Kamla, PW 3 and Rajinder, PW 4 both sustained bullet. injuries in the same occurrence and, therefore, their presence at the time of occurrence cannot be doubted at all. Their presence is even accepted D by four persons who were examined as Court witnesses. Smt. Kamla, PW 3 in her statement has given a graphic picture and the sequence of events which took place in which Om and Mahinder. lost their lives by gun shot injuries fired by deceased accused Nanu and the appellant as well as the bullet injuries sustained by her and her son Rajinder at the hands of deceased accused Nanu and the appellant. She deposed that she had hired E the tractor of Ram Partap of village Dhand on 23.12.83 and went to the field alongwith the deceased Om and her two sons Rajinder and Dharam- bir to plough the land. The deceased Mahinder was driving the tractor. After ploughing the land they started going back home on the tractor at about 7n."30 PM. She herself and her two sons were seated. 011 the left F mud-guard of the tractor while deceased Om was seated on the right mud-guard of the tractor. When they reached at the boundary of her field she saw in the tractor light the'deceased accused Nanu, the appellant Ram Kumar and the acquitted'accused Santlal standing there armed with pistols and gun. N anu raised a lalkara that he would teach them a lesson for G getting the land cultivated by others. Nanu fired at Om who fell down from the tractor and then the tractor driver Mahindcr took the tractor towards the field of Mukha Harijan. There they left the tractor and all of them rushed for hiding themselves to save their lives. They all hid in the cotton crop when three shots were fired towards them but no one was hit. They then proceeded towards the village hiding themselves in the field and when H A they reached near the Bus Stand Nanu and the other two accused, namely the appellant Ram Kumar and Santlal again raised a lalkara and all the three started firing. She received the bullet injury on the b;ick on the left side chest and fell down. She further deposed that Mahinder driver and her son Rajinder were also hit and thereafter the accused persons ran B away. She along with her two sons, Rajinder and Dharambir took shelter in the night in the house of one chhabila and then next morning proceeded on a jeep to the hospital, Adampur. Similar is the statement made by Rajinder, PW4. Their evidence is consistent and corroborated by the First Information Report and the medical evidence which has been discussed in the early part of this judgment. c

21. Smt. Kamla PW 3 deposed in cross-examination that the deceased Nanu had fired at Om from a distance of one hand and touching the barrel of his pistol with the head of Om. She further deposed that she herself and Mahinder were hit by bullet from a distance of about 1 or 2 D karam only. She received the bullet injury on back on the left side and Mahinder was hit on the back. This statement finds complete corroboration from the medical evidence. Dr. Shingal PW 1 who performed autopsy of dead body of Om found lacerated wound with inverted margins in the right parietal region. Blackening,. scorching and tattooing was also found around the wound which indicated that Om was shot at from a point Blank range E as deposed by Kamla. Similarly Dr. Shingal PW 1 also found lacerated wound with inverted margins on back of left side chest of deceased Mahinder with tattooing marks around the margins of wound. A mettalic piece was also found embedded in his second rib. Dr. Gandhi who ex- amined Kamla PW 3 found a lacerated wound on back of her left side chest F anrJ margins of wound were inverted. He also found foreign body em- bedded on her left side chest. The medical evidence thus fully corroborated the statement of Kamla PW 3. It may also be noticed here that the weapons of offence were not recovered and as such the evidence of Ballistic expert L.A. Kumar, Asstt. Director, Forensic Science Laboratory is not of any assistance in this case particularly in view of the fact that the weapons G which he examined were country made pistols which are non-standard weapons while in cross-examination he based his statement on standard weapons.

22. It is clear from the evidence of PW 3 and PW 4 discussed above H that they saw the appellant and the other two co-accused in the tractor .R.KUMARv.STATEOFHARYANA[FAIZANUDDIN,J.] light. Both these witnesses have stated that it was Mahinder who, was A driving the tractor and not Dalip as asserted by the learned counsel for the appellant. Learned Trial Judge rejected the evidence of these two eye-wit- nesses PW 3 and PW 4 mainly on the ground that neither Smt. Kamla herself nor through Chhabila informed the Sarpanch or Panch of the village same night about the occurrence that two persons have been killed and B they have been injured nor sent any intimation to the father of deceased Om whose house was nearby. The learned Trial Judge on these reasonings took the view that· in fact these two eye- witnesses were not sure about their assailants and it was for this reason that they did not inform any one in the village. The' High Court after analysing the evidence and facts and cir- cumstances of the case rejected this reasoning by taking the View that it C was a winter night in ·which two persons were killed in the village and, therefore, out of fear nobody would have preferred to risk his life to go out during night hours to inform the Panch, Sarpanch or father of deceased Om or any· other villagers particularly when the dispute was between the daughter-in-law and father-in-law. In our opinion the view taken by the D High Court is the only reasonable view and the Trial Court had fallen in serious error in rejecting the testimony of the two eye-witnesses PW 3 and PW 4 on flimsy and trivial grounds.

23. It may be pointed out that Pappu, Dalip, Ranbir and Sohanlal besides other persons were also cited by the prosecution as witnesses to the incident but they were given up by the prosecution stating that they had been won over by the accused persons, The learned Trial Judge, however, preferred to examine these four persons as CW 1, CW 2, CW 3 and CW 4. Reading of their statement will go to show that they are not truthful witnesses and, therefore, they were rightly given up by the prosecution on F the ground that they were won over. Pappu, CW 1 while admitting the presence of Kamla, PW 3 and her sons and also the presence of deceased Om and Mahinder made a false statement that the tractor was driven by Dalip. He deposed that he did not know as to who had fired the shots and the reason for declining to make the correct statement is obvious. In G cross-examination he admitted that he was cultivating the land of Nanu, the deceased. Dalip who according to the defence was driving the tractor was examined as CW 2 but interestingly enough he himself did not depose that he was driving the tractor. On the contrary he admits the presence of the deceased Mahinder and Om in the field of Kamla, PW 3. He deposed that he was not aware of the fact as to who had fired shots as a result of H which Om and Mahinder died. He also stated that Ranbir, CW 3 and Sohanlal CW 4 were also cultivating the land of the deceased accused Nanu. Ranbir, CW 3 admits his presence at the place of occurrence as well as the presence of deceased Om and Mahinder but stated that he had not seen the assailants. He admitted that he was cultivating the land of the B accused Nanu which he had obtained on lease from Panchayat. Similar is the statement of Sohanlal, CW 4. 24. The accused persons had also examined Advocate Sethi as DW 3 who had filed a criminal complaint in the Court of Magistrate, Hissar under Sections 302, 148, 149 and 104 of the Penal Code on behalf of Ram C Partap, the father of deceased Om. He admitted that he was engaged by the accused of the instant case. This complaint appears .to have been filed at the instance of the accnsed of the instant case against Harchand and others to show that they were not involved in the occurrence in question but Harchand and others were the persons responsible for the same. D Overall assessment of the evidence of all these CWs goes to show that they did not come forward with the true version of the incident and were out to help the deceased accused Nanu as they were closely associated and interested with him as they were cultivating his land. 1n the facts and circumstances discussed above it is absolutely clear that the findings recorded by the trial are against the weight of evidence on record and the E same are perverse. The learned Trial Judge was wholly unjustified and unreasonable in acquitting the accused appellant. After a close scrutiny of the evidence and the material on record discussed above we are of the firm opinion that the view taken by the High Court is the only possible view and, therefore, the High Court was fully justified in reversing the judgment and order of acquittal passed by the learned Session Judge and rightly held the deceased accused Nanu and the appellant responsible for the two deaths and an attempt on the life of PW 3 and PW 4. 25. Consequently for the reasons stated above the appeal fails and is hereby dismissed. T.NA. Appeal dismissed.