Jai Pal & Anr, Jai Sham Vs. State of U.T. Chandigarh & Ors [1998] INSC 369 (29 July 1998)

M.K. Mukherjee, D.P. Wadhwa M.K. Mukherjee, J

ACT:

HEAD NOTE:

J U D G E M E N T

These three appeals, which have been heard together, stem from an F.I.R lodged by Riaz Masih (P.W.8) on November 16,1991 at Mani Majra police Station for the murder of Chhinda in an accident that took place earlier on that day in Bapu Dham Colony. Pursuant to the charge sheet submitted by the police in that case three seperate trials were held.

In one of them Jai Sham, Durga Das and Pawan Kumar figured as accused, in another Jai pal and Padam, wh were juveniles, were tried and the third related to the trial of Jai Sham for the offence under Section 25 read with Section 27 of the Arms Act for being in unauthorised possession of knife, with which the murder was committed. The trials ended in acquittal of all the accused and aggrieved thereby the State preferred appeals before the High Court. In allowing the appeals by a common judgement the High Curt convicted Jai Sham under section 302 IPC and Sections 25/27 of the Arms Act and sentenced him to suffer imprisonment for life and rigorous imprisonment for three years respectively, with the direction that the sentences shall run concurrently. Accused Durga Das and Pawan Kumar were convicted under Section 302/34 IPC and each of them was sentenced to imprisonment for life. The High Court convicted the two juveniles also and directed their detention in a special Home for a period of seven years. In accordance with the provisions of Section 38 of the Juvenile Justice Act. Aggrieved by the convictions and sentences recorded against recorded against him, Jai Sham has filed two of these appeals while the other appeal has been filed by the two juveniles challenging their convection and detention in Special Home. The other two convicts, namely Durga Das and Pawan Kumar, however have not filed any appeal.

2(a) Shorn of details, the prosecution case is that on November 9,1991 at or abut 5 P.M. when P.W.8, his Brother- in-law Dayal Masih (P.W.9), brother Chhinda (deceased) and Joginder Singh (P.W.11), all employees of Bhushan Factory in the local Industrial Areas, were going to ease themselves they saw five young carrying two bags of aluminium powder with them. On suspicion that they were carrying stolen property, P.W 8 and his companions accosted them. In retallation they started abusing and one of them grappled with Chhinda and then left the place.

(b) A week later, on November 16.1991 to be precise, at or about 4.30p.m. when P.W.8,9 and the deceased were on their way to the factory, those five boys ambushed them and gave out that Chhinda would not be allowed to go alive.

Immediately, four of them namely Durga Das, Pawan Kumar, Padam Singh and Jai Pal caught hold Chhinda and Jai Sham started giving blows with a knife which he brought out from his pocket. Instinctively, when P.W. 8 and 9 shouted for help they took to their heels.

(c) Within a short-while the police party came on the spot and with their help Chhinda was removed to the Hospital, where he succumbed to his injuries. P.W.8 gave a statement abut the incident which was recorded by S.I. Sukhdev Singh (P.W.13) and the case was registered.

3. To prove its case the prosecution examined a number of witness of whom P.Ws 8 and 9 figured as eye witnesses. n a detailed discussion of their evidence the trial Curt found the same unacceptable;and the reason canvassed by it for such conclusions are that the evidence as to with whom and where the First Information Report was lodged was highly discrepant, that though P.Ws 8 and 9 admitted that the father's name of the accused and their addresses were not known them from before those particulars find place in the F.I.R and no explanation was forthcoming from the prosecution abut the same, and that the evidence of to the eye witnesses as also that of the to investigating Officers was contradictory on material particulars. In upsetting the findings of the trial Court the High Court held that the evidence of two eye witnesses was reliable and can be made the basis for conviction.

4. With the assistance of the learned counsel for the parties we have gone through the material evidence on record. Our such exrcise persuades us to hold that the High Court was not at all justified in convicting the accused persons for none of the reasons given by the trial court can be said to be perverse. On the contrary, in our considered view, each of the reasons is substantial and based on proper appreciation of evidence. The High Curt, Therefore, ought not to have aside the acuittal merely because a different view of the evidence can taken. Accordingly, we allow these appeals, set aside the impugned judgement of the High Court and acquit the three appellants before us. Since this judgements of ours is based on an over all consideration of the prosecution case and not by any particular accused, the benefit of this order should also go to the other two accused, namely Durga Das and Pawan Kumar, even though they have not preferred any appeal before this court. We, therefore, direct that Jai Sham, the appellant in Criminal Appeal Nos. 1192-1193 of 1997, and convicts Durga Dass and Pawan Kumar, all of whom are in jail be released forthwith, unless, wanted in connection with some other case. Further, we set aside the direction of the High Court to detain the two juveniles, namely Jai Pal and Padam, in Special Home.

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