Main Pal and Anr Vs. State of Haryana
& Ors  Insc 228 (5 April 2004)
Raju & Arijit Pasayat. Arijit Pasayat, J
appeals relate to a common judgment of Punjab and Haryana High Court and, therefore, are taken up together for
disposal. The appellants who faced trial for alleged commission of offences
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the 'IPC') and Sections 25 and 27 of the Arms Act, 1959 (in
short the 'Arms Act') were acquitted by the trial Court. By the impugned
judgment, a Division Bench of the High Court reversed the judgment of acquittal
and found the accused persons guilty of the charged offences and imposed life
sentence for offence relatable to Section 302 read with Section 34 IPC.
Jas Ram and Main Pal were sentenced to undergo sentence of one year and six
months respectively for offences under Section 27 and 25 of the Arms Act
version in a nutshell is as follows:
younger sister of Ram Sarup (PW-1) was earlier married to Hans Raj (hereinafter
referred to as "deceased"), son of Devi Lal (PW-2) about two months
before the date of incident. Deceased was earlier married to Rukmani of Village
Munda (Rajasthan), the sister of the two accused, namely Jas Ram and Main Pal.
she had committed suicide some time earlier and on this account, the
relationship between Hans Raj and the two accused had become strained. On
15.11.1993, Ram Sarup (PW-1) came to Sirsa from his village Kenia to purchase
some household articles. At about 5 to 5.50 p.m., he was returning to his village on foot when he met
deceased Hans Raj and Devi Lal (PW 2) on the way and they continued to walk
towards village Kenia. A short while later, they saw a motor cycle coming from
the behind with two persons riding on it. Deceased Hans Raj was then walking
slightly ahead of Ram Sarup (PW 1) and Devi Lal (PW 2). The motor cycle stopped
near the deceased and the person who was driving the same i.e.
Pal, addressed the person sitting on the pillion i.e. Jas Ram asking him to
avenge the killing of their sister. Jas Ram immediately got down from the motor
cycle and fired a shot from his country made pistol at Hans Raj, which hit him
on the right side of his chest, as a result of which he fell down on the
ground. PW-1 Ram Sarup raised an alarm on which accused Jas Ram called upon the
driver of the motorcycle to get away.
the accused then drove away on the motor cycle. Ram Sarup (PW-1) on looking
around noticed that Devi Lal had run away on account of fear and that Hans Raj
had died almost immediately. A short while later, Siri Ram, Ex- Sarpanch (PW-3)
and Prabhu Ram, Sarpanch happened to reach the place of occurrence and Ram Sarup
told them about what had transpired. Ram Sarup thereafter left for the police
station, Sirsa and lodged the FIR (Ex.PA) at 8.05 p.m. The special report was delivered to the illaqa magistrate
at 9.30 p.m. the same evening. After recording
the FIR, SI Ram Dhan (PW-9) and other police officials accompanied Ram Sarup to
the spot. As it was dark, much progress in investigation could not be made, but
was continued on the next morning, SI Ram Dhan inspected the dead body,
recorded the inquest report and picked up blood stained earth, an attache-case
and fired cartridge case from the spot. Accused Jas Ram surrendered in Court on
18.11.1993 and was interrogated by SI Ram Dhan in the presence of Balram (PW-6)
and Devi Dutt. On a disclosure statement made by him, a country made, 12 bore pistol,
(Ex.P-2) and two live cartridges were recovered. Accused Main Pal was arrested
on 19.11.1993 and was interrogated and on his disclosure statement a country
made, 12 bore pistol (Ex. P-3) and three live cartridges were recovered. The
spent cartridge cases and the pistols were sent for comparison to the Forensic
Science Laboratory, Madhuban, which opined vide its report Ex.PN that one of
the cartridges matched the weapon recovered at the instance of accused Main
order to substantiate the accusations, prosecution examined 9 witnesses. Ram Sarup
(PW-1) and Devi Lal (PW-2) were stated to be the eye-witnesses.
Ram (PW-3), the Ex-Sarpanch was examined to show that immediately after the
occurrence he had reached the place of occurrence and Ram Sarup had disclosed
the details of the incident to him. Balram (PW-6) and Ranjit Singh (PW-7) were
witnesses to recovery of pistols at the instance of accused Jas Ram and Main
Pal respectively. The accused persons pleaded innocence and took the stand that
they have been falsely implicated at the instance of one Munshi Ram.
trial Court on consideration of the evidence came to hold that the prosecution
has not been able to establish any plausible motive. The conduct of Devi Lal
(PW-2), father of the deceased was quite unnatural, and he appeared to have
been introduced to substantiate the evidence of PW-1 whose presence on the spot
was also doubtful. The conduct of PW-2 was held to be unnatural as no normal
person would go away from the spot after seeing that his son is being attacked
and would not return for a considerable long time, not caring to see as to what
had happened to his son. Though the FIR was lodged promptly the same was
discarded on the ground that a false plea relating to presence of Devi Lal was
introduced. As Ram Sarup (PW-1) had stated about the presence of PW-2 his
evidence was also discarded on the ground that it was a manipulated one.
appeals were filed by the State against the acquitted accused persons, while a
Criminal revision was filed by the informant questioning correctness of
judgment passed by the trial Court. The High Court noticed that the motive for
the crime has been established. The veracity of the evidence tendered by PWs 1
and 2 cannot be doubted, more so, in view of the evidence of Siri Ram (PW-3).
The fire arms used in the occurrence were recovered on the basis of information
given by the accused persons. The manner of appraisal of evidence as done by
the trial Court was not justifiable.
trial Court did not take note of the evidence tendered by PW-2, father of the
deceased about the threats given to him by the accused persons which clearly
established the motive. Accordingly, as noted above, the judgment of the trial
Court was set aside.
support of the appeals, Mr. Rajiv Dutta, learned senior counsel submitted that
the High Court has merely substituted its view in place of that expressed by
the trial Court. That is not permissible to be done while considering an appeal
against acquittal. The parameters to be kept while dealing with an appeal
against acquittal has been lost sight of by the High Court.
because the FIR was lodged promptly, as held by the High Court, it cannot be
lost sight of that the police station was at a distance of 2 K.M. from the
place of occurrence and the time taken was about two hours which provided ample
opportunity for manipulation and false implication.
was practically no evidence about enmity for constituting the alleged motive.
The trial Court had rightly found the conduct of PW-2 to be unnatural and since
PW-1 had falsely stated about his presence, that was taken note of by the trial
Court which directed acquittal. The investigation was tainted. Only relatives
of persons who lived at far off places were made witnesses to the alleged
recoveries. The pellets and wads allegedly recovered were not sent to the
Forensic Science Laboratory and no fire arms expert was examined.
identification of the accused persons by Ram Sarup (PW-1) is incredible. He
claimed to have seen the accused persons about 10 years back and same was
certainly a very long time to wipe out a recognition of a person. The doctor's
evidence shows that the firing was done from a higher level. Since both the
deceased and the accused who allegedly fired the gun were almost of the same
height, the version given by PWs 1 and 2 is clearly negatived by the medical
the identification the highly improbable story that the accused persons called
each other by name was introduced, as their names were not known to PW-1.
response, learned counsel for the State submitted that the presence of PWs 1
and 2 has been established by cogent evidence and the trial Court had erred in
discarding it. As rightly noted by the High Court, the evidence of Siri Ram
(PW-3) was not considered in its proper perspective. The reason indicated by
the trial Court to completely rule out the presence of the witnesses has no
basis. Though PW-2 may have, conceding for the sake of arguments, acted in an
unusual manner that really is not determinative because different persons react
differently even in similar situations.
bare perusal of the trial Court's judgment one thing is patently noticeable.
The trial Court has merely referred to the arguments advanced and has then come
to abrupt conclusions without even indicating any plausible or relevant
reasons, therefor. Merely coming to a conclusion without any objective analysis
relating to acceptability or otherwise of the rival stands does not serve any
useful purpose in adjudicating a case. The trial Court was required to analyse
the evidence, consider the submissions and then come to an independent decision
after analysing the evidence, the submissions and the materials on record.
Since the trial Court had not pragmatically analysed the evidence, and had
given abrupt conclusions, that itself made the judgment vulnerable. Further,
several aspects which the trial Court found to be significance were really
arrived at hypothetically and on surmises. Merely because the evidence of PW-2
shows that he acted in an unnatural manner, that per se would not be a
determinative factor to throw out the otherwise cogent prosecution evidence.
High Court on the other hand has considered in great detail the evidence of the
witnesses. It has come to a positive finding that PW-1 was in a position to
identify the accused persons. Some of the pleas now advanced were also not
taken up before the courts below, for example non examination of the
pellets/wads by the Forensic Science Laboratory. On considering the evidence of
record, pragmatically one thing is clear that the High Court after analysing
the evidence in great detail, was justified in treating the trial Court's
judgment to be practically un-reasoned.
PWs 1 and 2 were related to the deceased, that does not in any manner affect
the credibility of their evidence. When a person is shown to be the relative of
an accused, it is open to the Courts to critically analyse his evidence with
caution and then come to a conclusion whether the same is credible and cogent.
Though the conduct of PW-2 may appear to some to be somewhat unusual, as
rightly noted by the High Court, every person cannot act or react in a
particular or very same way and it would depend upon the mental set up of the
person concerned and the extent and nature of fear generated and consequently
on the spot his reaction in a particular way has to be viewed on the totality
of all such circumstances. The hypothetical discrepancy regarding the height
from which the gun was shot is one aspect which needs to be noted, only to be
eye-witnesses' version, even though of the relatives, is found to be truthful
and credible after deep scrutiny the opinionative evidence of the doctor cannot
wipe out the effect of eye-witnesses' evidence.
opinion of the doctor cannot have any binding force and cannot be said to be
the last word on what he deposes or meant for implicit acceptance. On the other
hand, his evidence is liable to be sifted, analysed and tested, in the same
manner as that of any other witness, keeping in view only the fact that he has,
some experience and training in the nature of the functions discharged by him.
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. As a matter of fact, in an appeal against acquittal, the
High Court as the court of first appeal is obligated to go into greater detail
of the evidence to see whether any miscarriage has resulted from the order of
acquittal, though has to act with great circumspection and utmost care before
ordering the reversal of an acquittal. 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 and Ors. v.
State of Madhya Pradesh (2002 (2) Supreme 567). The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. This
position has been recently re- iterated in Joseph v. State of Kerala ( 2003 (1)
SCC 465), Devatha Venkataswamy @ Rangaiah v.Public Prosecutor, High Court of
A.P. (2003 (10) SCC 700 , State of Punjab v. Phola Singh and another (2003 (11)
SCC 58), State of Punjab v. Karnail Singh ( 2003 (11) SCC 271) , State of U.P.
v. Babu and others ( 2003 (11) SCC 280) and Suchand Pal v. Phani Pal and Anr. (
2003 (11) SCC 527).
the judgment of the trial Court was practically unreasoned without any attempt
to critically and objectively analyse the evidence, the High Court was
justified in undertaking a re-appreciation of the evidence and the High Court
in the case on hand has taken into account all the relevant aspects of the case
to hold the accused persons guilty, we consequently find no scope for
interference at the instance of the appellants in these appeals. The appeals
are accordingly dismissed.