Satish Kumar Mittal, J.@mdashThe State of Haryana has filed this application for grant of leave to appeal u/s 378(3) Cr. P.C. against the judgment dated 2.12.2009 passed by the Addl. Sessions Judge, Fast Track Court, Sirsa, whereby Respondents Aman Kumar and Sumit @ Vicky have been acquitted of the charge under Sections 392/394/397 read with Section 34 IPC framed against them, and Section 25 of the Arms Act framed against Respondent Sumit @ Vicky.
2. In this case, both the Respondents, who are real brothers and doing Kiryana business in front of the cotton factory of the complainant, were tried by the learned Additional Sessions Judge, Fast Track Court, Sirsa for committing the offence under Sections 392/394/397 IPC and Section 25 of the Arms Act in case FIR No. 48 dated 20.1.2009 registered under Sections 392/394/397 IPC and Section 25 of the Arms Act at Police Station City, Sirsa. The said FIR was registered on the basis of the statement made by the complainant. According to the said statement, at about 8.00 p.m., two young men with muffled faces came on their motorcycle. They stopped their motor cycle in front of the office of the complainant. After alighting from the motor cycle, they entered into his office. One of them was armed with country made pistol and other with kappa in his hand. After entering into the office, both of them asked the complainant to give cash. One of them snatched Rs. 50,000 from his Clerk, who was present in his office and thereafter ran towards the gate. In the meanwhile, his Clerk raised alarm which attracted the workers, who were working in the factory. One Pardeep Kumar, worker tried to catch hold the assailant, who was having kappa in his hand, but the said assailant gave a kappa blow on his right arm. Thereafter, the other workers tried to catch hold both the assailants. In that process, the clothes, with which the assailants had muffled their faces, had fallen down and both of them were recognized as Sumit @ Vicky and Aman son of Vijay Kumar, who were running a Kiryana shop in front of his cotton factory. He further stated that Aman, who was armed with kappa, managed to escape from the spot, whereas Sumit @ Vicky was apprehended by him along with the pistol and the amount of Rs. 50,000. In the last, it was stated that accused Sumit @ Vicky tried to escape from the spot and in that process his motor cycle slipped and, thus, he had also received injuries.
3. In support of its case, the prosecution has mainly relied upon the statement of Jai Kishan (PW1), Amit Kumar, Clerk (PW2) and Pardeep Kumar, worker (PW10). Pardeep Kumar (PW10) was medico-legally examined by PW7-Dr. Pawan Kumar. His Medico Legal Report is Ex.P11 on the record.
4. It is admitted position that Sumit Kumar accused was also medico-legally examined by PW7-Dr. Pawan Kumar and four injuries, two lacerated and two bruises, were found on his person. In his cross-examination, PW7-Dr. Pawan Kumar has categorically stated that these injuries on the person of Sumit were not possible by fall from motor cycle on a kutcha surface. Further PW10-Pardeep Kumar, who alleged to have received injuries in the occurrence, did not support the prosecution version and had categorically stated that he was not aware how he had received the injuries on his right hand. According to him, when he was cross-examined by the Public Prosecutor, he had stated that there was a dispute between the accused and the complainant because the complainant had put the water pipe in the kutcha path adjoining their land and the accused objected for the same. PW11-Nafe Singh, Investigating officer has also admitted in his cross-examination that there was some dispute between the complainant and the accused.
5. The trial Court, after appreciating the evidence led by the prosecution in detail, has come to the conclusion that the testimonies of PW1-Jai Kishan and PW2-Amit Kumar, which were having glaring discrepancies on many aspects, are not reliable and the same have also not been corroborated by the independent witness of the occurrence, namely, Pardeep Kumar (PW10). The trial Court has also come to the conclusion that the possibility of false implication of the accused by the complainant in order to take revenge on account of the dispute for laying down the pipeline, cannot be ruled out. The trial Court has also come to the conclusion that it is highly improbable that the accused, who were running a tea stall and Kiryana shop in front of the factory gate and providing tea to the workers of the factory, will attempt to rob the owner of the factory. After taking into consideration all the facts, the trial Court came to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubts against both the accused and, thus, acquitted them of the charge framed against them.
6. After hearing learned Counsel for the applicant and going through the impugned judgment, we do not find any illegality or perversity in the judgment of acquittal passed by the trial Court. In
1. The accused is presumed to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court. The trial court''s acquittal bolsters the presumption that he is innocent.
2. The powerof reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court''s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanor of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellatecourt may only overrule or otherwise disturb the trial court''s acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
6. An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused.
7. The trial court judgment cannot be set aside because the appellate court''s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
7. We have examined the judgment of the trial Court and the reasoning given by it for acquittal of the accused in light of the aforesaid guidelines. In our view, the trial Court, after properly appreciating the evidence led by the prosecution, has rightly come to the conclusion that the prosecution has failed to prove the case against the accused beyond all reasonable doubts. In our opinion, the view taken by the trial Court, is not in any way unreasonable, perverse or impossible. Rather, in the facts and circumstances of the case and the evidence led by the prosecution, the second view is not possible and plausible. In our view, the trial Court has rightly not relied upon the statements of PW1-Jai Kishan and PW2-Amit Kumar, not only because there are various contradictions and discrepancies in their statements, but their version have also not been corroborated by PW10-Pardeep Kumar, the independent witness, who categorically admitted that he had not received the injuries in the alleged occurrence. He has also admitted the fact that there was a dispute between the accused and the complainant because the complainant had put the water pipe in the Kutcha path and the accused objected for the same. The trial Court has further rightly appreciated the medical evidence led by the prosecution while taking into consideration the statement of PW7-Dr. Pawan Kumar in the cross-examination where he has categorically stated that the injuries received on the person of Sumit @ Vicky accused were not possible by fall from motor cycle on a kutcha surface. Thus, in our view, the judgment of acquittal passed by the trial Court does not suffer from any illegality or perversity.
8. In view of the above, we do not find any ground to grant leave to appeal against the judgment dated 2.12.2009 passed by Addl. Sessions Judge, Fast Track Court, Sirsa. Hence, the application is dismissed.
