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STATE OF HARYANA versus YOGESH & ORS

High Court of Punjab and Haryana, Chandigarh

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State of Haryana v. Yogesh & Ors - CRM-481-MA-2006 [2007] RD-P&H 555 (18 January 2007)

Crl.M.No.481-MA of 2006 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.M.No.481-MA of 2006

Date of decision: 23.1.2007

State of Haryana

.....Applicant-appellant

v.

Yogesh and others

.....Respondents

CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE H.S.BHALLA

Present Mr. JS Toor, Addl.A.G.Haryana, for the applicant.

ORDER:

This petition has been filed for leave to appeal to challenge acquittal of the respondents of the charge under sections 302/34 IPC and 25 of the Arms Act, 1959.

Case of the prosecution is that on 25.1.2001, Naveen alias Kala was killed by the respondents. Occurrence was witnessed by Sat Bhagwan alias Satta, who gave the said information to Jagmohan, brother of the deceased. FIR was registered on the statement of Jagmohan. Initially, version given in the FIR was that on 25.1.2001 at 6 AM, Mohinder Singh and his sons Anil and Jitender Singh came to the shop of Naveen alias Kala, deceased, where Sat Bhagwan alias Satta was also present and asked Sat Bhagwan alias Satta to wake up Naveen alias Kala. Sat Bhagwan woke up Naveen alias Kala and told him that Mohinder Singh, Anil and Jitender Singh had come to talk to him. Naveen alias Kala put on his clothes and left towards the fields of Dariya. On the way, Jitender Singh son of Mohinder Singh took out pistol and fired shot on the temple region of the deceased.

Mohinder Singh and Anil caught the deceased by his arms. On receiving the bullet injuries, the deceased fell down. The assailants threw their pistol and fled. Sat Bhagwan alias Satta informed Jagmohan about the occurrence.

Parveen, other brother of the deceased also reached the spot. Jagmohan ran to the spot and saw the dead body of his brother and lodged the report.

Crl.M.No.481-MA of 2006 2

During investigation, it was found that Mohinder Singh and his sons Anil and Jitender Singh were not involved in the incident. Instead, Yogesh and his cousins Sonu and Devi Singh were involved, who had entered into conspiracy to kill the deceased. The deceased had illicit relations with Saroj wife of Joginder which was objected to by Yogesh.

Sonu was arrested on 24.2.2001. Other accused were also arrested and after completing investigation, challan was filed against them.

Case of the prosecution mainly rested on the testimony of Sat Bhagwan, PW-9, who deposed that his sister was married to Jagmohan, brother of the deceased. The deceased was running a video cassette shop.

He had gone to the said shop. One Sanjeev was also present there. He left the said shop. Next day at 6 AM, three persons came to the shop and disclosed their names as Mohinder Singh, Anil and Jitender Singh. Infact, Yogesh, accused had disclosed his name as Mohinder Singh, Sonu, accused had disclosed his name as Anil and Devi Singh had disclosed his name as Jitender Singh. They asked him to wake up Naveen. He woke up Naveen who went with the said persons. Two of them - Yogesh and Sonu caught him and one of them - Devi Singh fired at the head of the deceased from point blank range. He was standing outside the shop and seeing them. The accused ran away. He went to the house of Naveen. Jagmohan was not found there and then he went to Sabzi Mandi and met Jagmohan. Jagmohan then went for lodging the FIR.

The trial court rejected the version of the prosecution, inter- alia, for the following reasons:-

(i)In the FIR, names of Mohinder Singh, Anil and Jitender Singh were mentioned and it was not mentioned that Sat Bhagwan, PW-9 did not know the assailants earlier. PW-1 Jagmohan had also mentioned that he had been told by PW-9 Sat Bhagwan that the assailants were Mohinder Singh, Anil and Jitender Singh. The reason for the occurrence was mentioned as enmity of the accused. The said witnesses were closely related to Mohinder Singh and were also having criminal litigation with him and, therefore, Crl.M.No.481-MA of 2006 3

they personally knew him. PW-9 Sat Bhagwan did not know the accused Yogesh, Sonu and Devi Singh previously. No test identification parade was held.

Identification of the said accused by PW-9 Sat Bhagwan for the first time in court could not be relied upon.

(ii)PW-1 Jagmohan and PW9 Sat Bhagwan made improvements in the prosecution story, not only with regard to name but also with regard to the motive for the occurrence. The version of PW-9 Sat Bhagwan was also unreliable as he neither informed about the occurrence to Sanjeev, partner of Naveen nor to other family members of the deceased.

(iii)PW-12 Shamsher Singh was examined to prove the extra judicial confession of Yogesh. The said witness was not previously known to the accused and was resident of a far off place. There was no occasion for the accused to make extra judicial confession before him. Even otherwise, extra-judicial confession was found to be contradictory to the version given by the prosecution.

(iv)Recoveries were not reliable.

(v)Prosecution version was unnatural and improbable.

Right hand of accused Devi Singh had been amputated from the wrist and firing by him by the left hand was not probable. Catching hold of the deceased on whom shot was fired from country made pistol was also doubtful.

We have heard learned counsel for the State and perused the findings recorded.

The reasons noticed above for acquittal of the respondents cannot be held to be unreasonable or perverse so as to call for interference in an appeal against acquittal.

Crl.M.No.481-MA of 2006 4

Scope of appeal against acquittal has been gone into by the Hon'ble Supreme Court, inter-alia, in Jaswant Singh v. State of Haryana, AIR 2000 SC 1833, wherein it was observed:- "21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra, (1973 2 SCC 793: AIR 1973 SC 2622: (1973 Cri LJ 1783)). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: 1996 AIR SCW 2438: AIR 1996 SC 2035 (1996 Cri LJ 2867): "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."

In view of above, we do not find any ground to grant leave to appeal.

The petition is dismissed.

(Adarsh Kumar Goel)

Judge

(H.S.Bhalla)

January 23, 2007 Judge

'gs'


Copyright

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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