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CASE NO.:

Appeal (crl.) 32 of 1992

PETITIONER:

RAM KUMAR

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 07/10/1994

BENCH:

DR. A.S. ANAND & FAIZAN UDDIN

JUDGMENT:

JUDGMENT

1994 Suppl (4) SCR 335

The Judgment of the Court was delivered by

FAIZAN UDDIN, J.

1. This is an appeal under Section 379 of the Code of Criminal Procedure

preferred by the appellant Ram Kumar challenging the judgment and order of

the High Court of Punjab & Haryana passed in Criminal Appeal No. 418-DBA

of 1986 convicting the appellant under Section 302/34 for causing the

murder of Mahinder and sentencing him to life imprisonment as well as under

Section 307/34 for attempt to commit murder of Kamla, PW 3 and her son

Rajinder, PW 4 sentencing him to undergo rigorous imprisonment for three

years on each count directing all the sentences to run concurrently, after

reversing the judgment and order of the Session Judge, Hissar in Sessions

Trial No. 80/48 A/1985 decided on 7.1.1986 whereby the appellant and the

other three co-accused namely, Nanu, Razari and Saatlal were acquitted.

2. The complainant Smt. Kamla, PW 3 was wedded to Ram Kumar, son of co-

accused Nanu Ram (since deceased) about 14 years before the occurrence. The

father of Nanu Ram owned and possessed 76 killas of land which he had

transferred in favour of his grand son Ram Kumar, the husband of Kamla.

Ram Kumar executed a will in respect of 50 killas of land in favour of

his parents in equal shares, the co-accused Nanu being his father. The

rest of 26 killas of land remained with Ram Kumar and on his death about

four and a half years before: the occurrence the said land came under the

cultivation of his wife Smt. Kamla, the daughter-in-law of the co-accused

Nanu Ram. During the life time of her husband Ram Kumar, Smt. Kamla

started living separate from her in-laws alongwith her husband. She has

two sons, namely Dharambir and Rajinder, PW 4 and two daughters. Smt.

Kamla was cultivating land with the help of labourers and used to go out

for household work against the wishes of her father-in-law, Nanu Ram. Nanu

Ram was a source of trouble to her and often created problems in her way

in the cultivation of the land for which Kamla reported the matter to: the

Police as a result of which proceedings under Section 107/151 of the Code

of Criminal Procedure were initiated against him and produce of land was

given to Kamla. Thereafter the land had to be left uncultivated for one

year. This according to the prosecution provided motive to commit the

crime.

3. On 23,12.83 Smt. Kamla, PW 3 hired a tractor of one Ram Prasad for

ploughing her land and went to the land alongwith her two sons Dharambir

aged 91/2 years and Rajinder, PW4 aged about 8 years. Deceased Om Prakash

was working with her as a labourer who had also gone to the land alongwith

them. The tractor Was driven by the driver Mahender. After ploughing 2

killas of land it started becoming dark and, therefore, the ploughing was

stopped at about 7.00 PM. While returning to the village Kamla alongwith

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her two sons named above sat on the left mud-guard of the tractor while Om

Prakash was sitting on the right mud-guard of the tractor driven by

Mahender. When the tractor reached near the doul (boundary) of the land

belonging to Kamla, she saw in tractor light the co-accused Nanu Ram (her

father-in-law) and Santlal (who is the husband of daughter of Nanu Ram)

armed with pistols and the appellant Ram Kumar (who is the brother of the

wife of Nanu Ram) armed with gun. Nanu Ram raised a lalkara that he would

teach her a lesson in getting the land cultivated with the help of Other

persons. Saying so Nanu Rain from a point blank distance fired a shot from

his pistol at Om who fell down from the tractor and died. The driver

Mahender turned the tractor aside with speed towards the field of one Mukha

Harijan and then brought it to a halt. Kamla, her two sons and the driver

Mahender got down from the tractor and hid themselves in cotton crop

standing in a nearby field. The accused Nanu Ram and Santlal as well as

the appellant Ram Kumar fired three shots at them after they had gone into

the hiding place but none of them was hurt. After a shortwhile they rushed

towards the bus stand of the village Dhand to a distance of about 19-20

Julias and the accused Nanu Ram, Sandal and the appellant Ram Kumar chased

them and again fired three shots at them. One bullet hit the left side of

the back of chest of Kamla, PW 3 as a result of which she fell down.

Mahinder was hit by a bullet as a result of which he also fell down in a

pit on the road side. Rajinder, PW 4 the son of Kamla sustained a bullet

injury on his left foot. After a shortwhile Kamla, PW 3 managed to get up

and she alongwith her two sons went to a nearby house of one Chhabila where

she took shelter during the night. Mahinder succumbed to his injuries on

the spot.

4. In the morning at about 8/830 AM Kamla, PW 3 hired a Jeep of one Hazari

and she along with her injured son Rajinder reached Civil Hospital Adampur

at about 9.45 AM where Dr. J.M. Gandhi, PW 2 examined Kamla and her son

Rajinder on 24.12.83 at 10.30 AM and 11 AM respectively. Dr. Gandhi sent

information Ext. PE to the Police Station, Adampur at 10.15 AM on 24.12.83

stating that Kamla and Rajinder had fire arm injuries on their person. Oh

receiving the Information the ASI Bhana Ram, PW6 alongwith some Constables

reached the Civil Hospital, Adampur and recorded the statement Ext. PG of

Kamla, PW 3 after obtaining the opinion of the doctor the she was fit to

make the statement. ASI Bhana Ram collected medico legal reports to the

injured witnesses and alongwith the statement of PW 3 forwarded the same

to the Police Station, Adampur where FIR PG/2 was registered at 11.40 AM

on 24.12.83.

5. Thereafter ASI Bhana Ram proceeded to the place of occurrence and found

the dead body of Mahender lying near the bus stand of village Dhand. He

prepared the inquest report Ext. PB/3 of the dead body of Mahinder. He

then proceeded towards the place where the dead body of Om was lying and

prepared the inquest report Ext. PA/3 of deceased Om. He also picked up

the blood stained earth from near the dead body of Om and also two empty

cartridges from the spot which were seized vide Ext. P-17 and P-18 The

tractor standing at some distance from the dead body of Om was also seized.

One empty cartridge lying near the dead body of Mahinder was also seized

vide memo Ext. PM. After preparing the site plan the two dead bodies were

sent for post-mortem examination.

6. Dr. R. P. Shingal, PW 1 performed an autopsy on the dead body of Om on

24.12.83 at 11.30 AM and found the following injuries on his person :-

Lacerated wound 1cm x 1cm with inverted margins on the right parietal

region. Blackening and scorching was present around the wound alongwith

tattooing. On dissection the doctor found a big haematoma on right and left

parietal region of the skull in sub cutaneous tissues. On removing the

haematoma fracture of right parietal bone, frontal bone and left parietal

bone was found. On removing the vault of skull there was track from right

parietal region of brain to opposite parietal region through the brain

matter. There was a fracture of left zygomatic and maxillary bone. A

metallic piece was found in the sub-cutaneous tissue in left zygomatic

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region which was sealed.

In the opinion of the doctor the time that elapsed between the injury and

death was instantaneous and the time between the death and post-mortem was

within 48 hours. The cause of death was shock and harneorrhage as a result

of injury described above which was ante-mortem in nature and sufficient in

the ordinary course of nature to cause death.

7. Doctor Shingal also performed an autopsy over the dead body of Mahinder

on 25.12.83 at 1230 PM and found the following injury :-

Lacerated wound with inverted margins measuring 1cm x 3/4cm on the

back of left side of chest. Tatooing was present around the margins of the

wound. No blackening and charring was found. On dissection the doctor found

that the left pleura opposite the wound was torn, left pleural cavity was

full of blood. There was laceration of the left Lung. A metallic piece was

found at site of fracture in second rib. In sub-cutaneous tissue there was

sub-cutaneous haemotoms opposite site of fracture of rib on left side of

the front of chest. The doctor also found a corresponding tear in the shirt

and jersy.

In the opinion of the doctor the time that elapsed between injury and death

was within a few minutes and between death and post-mortem 48 hours. The

cause of death was shock and hemorrhage as a result of injury described

above which was ante- mortem in nature and sufficient to cause death in the

ordinary course of nature.

8. On 24.12.83 at 10.30 AM Dr. J.M. Gandhi, PW 2 medically examined

Rajender, PW 4 and found the following injuries on his person:-

1. Lacerated wound 1.5cm x 1cm x bone deep on the interior aspect of left

foot, fresh bleeding and margins were inverted.

2. A lacerated wound 2cm x 2cm x bone deep on the left foot near the heel

with irregular margins, crushed tissues.

3. A lacerated wound 2cm x 2cm x bone deep on the posterior aspect of left

big toe just below the nail and fresh bleeding. These injuries were

Caused within 24 hours by firearm. All the injuries were simple in

nature.

9. On the same day Dr. Gandhi had examined Kamla, 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 bum 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 and foreign body was present on the left side chest.

10. After the occurrence the accused persons could not be apprehended

and it was only on 27.9.84 after about 9 months that the Inspector Om

Prakash, DSP Kirpal Singh and ASI Krishan Chand apprehended the

accused Nanu, the appellant Ram Kumar and Hazari while 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 pistol P-23 and 2

live cartridges Ext. P-24 and P-25, while acquitted accused Hazari was

carrying a pistol Ext. P-26 and 3 live cartridges Exts. P-27, P-28 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

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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

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, Karnai.

12. On 7.5.85 the Public Prosecutor gave up some of the prosecution

witnesses including Pappu, Dalip, Ranbir and Sohanial 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 t6 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, Dalip, CW

2, Ranbir, CW 3 and Sohanial, 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 ASI

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, ASI 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 have been fired

from close range as deposed by Kamla, PW 3. On these findings the learned

Trial Judge took the view that the prosecution had failed to bring home the

guilt 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 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 convicted under Sections 302

and 302/34 for causing death of Om and Mahinder and also under Section

307/34 for causing injuries to Kamla 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 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 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 appellant 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

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appellant giving sound and cogent reasons for disbelieving the prosecution

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

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

arid 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

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 its order acquitting 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-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 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-

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 730 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 ASI Bhana Ram, PW 6 while she was

in Civil Hospital, Adampur. But this delay has been 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. After she and her

soil 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 the tractor, both were

killed in the occurrence. In such circumstances it could not be expected

from a widow and injured lady Kamla without risk 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 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 ASI Bhana Ram, PW 6 arrived at the Health Centre at about

10.30 AM on 24.12.83 and recorded the statement Ext. PG of Smt. Kamla, 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 unrealistic view in holding that the delay Was not explained

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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 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 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 Mahinder had succumbed to their

bullet injuries. There was, therefore nothing unusual in the report in

which Kamla 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

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 Superintendent

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

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.

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 Kamla 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 ASI 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. Kamla, PW 3 and 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 Ballistic 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

bad become dark at the time When the occurrence took place and there being

no source of light it was not possible for the said witnesses to identify

the 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

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to falsely implicate the appellant and, therefore, the Trial Court was

justified in rejecting their evidence. After giving a careful consideration

to the submissions made by the learned counsel for the appellant and after

making a dose and careful scrutiny 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 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 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 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 7/7.30 PM. She herself

and her two sons were seated on the left 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. Nanu raised a lalkara

that he would teach them a lesson for getting the land cultivated by

others. Nanu fired at Om who fell down from the tractor and then the

tractor driver Mahinder 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 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 back 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 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

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 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 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 metallic 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 and 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 which he examined

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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 that

they saw the appellant and the: other two co-accused in the tractor light.

Both these witnesses have stated that it was Mahinder who was 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 of Panch of the Village Same night about the

occurrence that two persons have been killed and 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 riot inform anyone 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 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 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 oh

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 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 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 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 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 accused 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. 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. In the facts and circumstances

discussed above it is absolutely clear that the findings recorded by the

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trial are against the weight of evidence on record and the same are

perverse. The learned Trial Judge was wholly unjustified and unreasonable

in acquitting the accused appellant. After a dose 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.