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STATE OF HARYANA versus SATYAVEER & ANR

High Court of Punjab and Haryana, Chandigarh

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STATE OF HARYANA v. SATYAVEER & Anr - CRM-MA-574-2004 [2006] RD-P&H 102 (11 January 2006)

Criminal Misc.No.60296 of 2004

State of Haryana Vs. Satyaveer and another Present: Mr.S.S.Patter, Senior Deputy Advocate General, Haryana for the applicant.

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Amar Dutt, J.

When Criminal Misc. No.574 MA of 2004 was filed by the State of Haryana, it was accompanied by two Criminal Misc. Applications bearing No.60295 of 2004 under Section 482 Cr.P.C. for condoning the delay of beyond 40 days in refiling of Criminal Misc.No.574 MA of 2004 and No.60296 of 2004 under Section 5 of the Limitation Act for condoning the delay of 80 days in filing of the aforesaid Criminal Misc. Vide order dated 3.2.2005, delay in refiling of the aforesaid Criminal Misc. was condoned while notice was issued in the application under Section 5 of the Limitation Act. Notice was served on the respondents for 9.5.2005 but they were proceeded against exparte as no one had put in appearance on their behalf and the case was adjourned to 19.7.2005. Today, again no one puts in appearance on behalf of the respondents and therefore, as there is no opposition, we accept the reasons enumerated in Criminal Misc.

Criminal Misc.No.60296 of 2004

Application No.60296 of 2004 and hold that sufficient cause has been shown to explain the delay. Consequently, Criminal Misc. No.60296 of 2004 is allowed as prayed for and the delay of 80 days in filing of Criminal Misc. No.574 MA of 2004 is condoned.

We have heard Mr.S.S.Patter, learned Senior Deputy Advocate General, Haryana in Criminal Misc. No.574 MA of 2004 and gone through the record carefully with his assistance.

The respondents were tried by the Additional Sessions Judge, Fatehabad for offences under Section 307/34 IPC for having caused injuries to Sahab Ram. The Trial Court after appraisal of the evidence came to the conclusion that the opinion of Dr. Mohinder Kumar PW1 could not be relied upon because:-

"in cross-examination he had testified that he did not examine patient radiologically and that the patient was referred after 30 minutes of his admission to Government Hospital, Fatehabad after giving first aid treatment and life saving drugs. Thereafter he had never attended the patient nor had he treated him. He admitted that C.T. Scan report of the patient was not available on the file. He had given his Criminal Misc.No.60296 of 2004

report about the nature of injuries on the report of x-ray as well as his clinical condition. In his opinion regarding declaration of nature of injuries he had not mentioned the basis of clinical condition but had mentioned only the grounds being multiple compound fracture. The clinical condition as narrated by him in court on 15.1.2000 was available at the time of preparing the MLR as well. That being so, it is not understood why the clinical condition was not written in the MLR.

Dr.R.K.Leekha PW2 had on 26.6.1999 radiologically examined Sahab Ram. Photocopy of the x-ray report Ex. P7 and the x-ray films are Ex.P8 and Ex.P9. He had opined that multiple compound fracture of skull was seen. However, in cross-examination he had testified that he had admitted it as correct that as per the x-ray register brought by him first of all he had started to write multiple fracture and then he wrote multiple compound fracture of skull. No reason has been advanced for that change of mind on the part of this doctor. It seems the said opinion was managed by the complainant side."

Criminal Misc.No.60296 of 2004

It is on the basis of this appraisal of the evidence and the material contradictions in the statements of prosecution witnesses as also the fact that no attempt was made by the respondents to repeat the blow that the Trial Court relying upon the observations of the Apex Court in Mithu Singh Vs.The State of Punjab, 2001(2) Criminal Court Judgments, 17 had given the benefit of doubt to the respondents.

Mr.S.S.Patter, learned Senior Deputy Advocate General, Haryana has not been able to bring to our notice any circumstance from which it can be inferred that the view taken by the Court below is perverse and was not warranting an acquittal of the respondents. As the view taken by the Trial Court is probable and not based on conjectures and hypothesis but on logical evidence, it would not be appropriate for this Court to reopen the matter and disturb the findings of fact, which have been arrived at by the Court below as has been held in Allarakha K.Mansuri Vs.State of Gujrat, 2002 S.C.C. (Criminal) 519, wherein it was held as under:- "Though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal Criminal Misc.No.60296 of 2004

the presumption of innocence in favour of the accused is reinforced.

The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case 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 should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent.

In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

Criminal Misc.No.60296 of 2004

Reliance can also be placed on the observations of the Apex Court in Dwarka Das & Ors. vs. State of Haryana, 2002(4)R.C.R.(Criminal) 794, wherein it was observed as under:-

"While there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence; one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial Court, would have taken the other view.

While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Session Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Session Judge, as otherwise, there would be gross miscarriage of justice so said Patanaik J. in Hariram & Ors. v. State of Rajasthan, 2000(3) R.C.R.(Crl.)414 (SC) : [2000(9)S.C.C.136]." Criminal Misc.No.60296 of 2004

For the reasons mentioned above, we decline leave to the applicant to appeal against the judgment dated 20.1.2004 passed by learned Additional Sessions Judge, Fatehabad. Consequently, Criminal Misc. Application No.574 MA of 2004 is dismissed.

(Amar Dutt)

Judge

July 21,2005 (Kiran Anand Lall)

Pa Judge

Criminal Misc.No.60296 of 2004


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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