2009 (5 )  SCR 322

STATE OF HARYANA v.

BALKAR SINGH & ORS. (Criminal Appeal No. 260 of 2004)

MARCH 26, 2009 [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA AND P.  

SATHASIVAM, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. State of Haryana is in appeal against the judgment  

of a Division Bench of th Punjab and Haryana High Court upholding the judgment of  

acquittal passed by learned Additional and Sessions Judge, Kurukshetra.

2. The respondents, three in number, were charged for commission of offences  

punishable under Sections 302 and 323 read with Section 34 of the Indian penal  

Code, 1860 (in short 'IPC').

3. The factual position as projected by the prosecution is as follows:

4. On 9.2.1993 at about 8.00 A.M.,Dev Singh was heading from the house to his  

fields carrying a Sutli and Sua for the purpose of stitching the bags in which potatoes  

were to be packed and he had hardly covered a distance of 4/5 yards when he found  

accused  Balkar  Singh,  Chuhar  Singh,  Surinder  Singh,  Sher  Singh  (hereinafter  

referred to as 'deceased') and injured Shamsher Singh standing near the tubewell of  

Chuhar Singh, where a drain existed and some water had stagnated by the road  

side, because the height of the drain was more than the height of the road and some  

water had tricked inside the house of Harbans Singh. Sher Singh and Shamsher  

Singh requested Balkar Singh and Chuhar Singh to deepen the drain so that water

would not flow into their houses, to which Balkar Singh and Chuhar Singh did not  

agree and asked them to do themselves and thereafter the accused left the place.  

Deceased Sher Singh and Shamsher Singh started deepening the drain with the  

help of a kassi. After about one minute accused Balkar Singh carrying a Gandasi  

and the remaining two Chuhar Singh and Surender Singh armed with lathis came  

there. Balkar Singh gave a gandasi blow to Sher Singh, which hit his left temple.  

Chuhar Singh gave a lathi blow which hit the left side of the temple and Surender  

Singh gave a blow on the head of Sher Singh, who fell down and Shamsher Singh  

ran towards his house. Thereafter there was free exchange of danda blows from  

both sides.  Shamsher  Singh was injured by all  the three accused,  who received  

injuries  on both shoulders,  left  side of  the chest  and head.  The occurrence was  

witnessed by him and Prem Singh, who was standing at a distance of 5/7 paces.  

Thereafter the accused left with their respective weapons and the injured Sher Singh  

and Shamsher  Singh were  removed in  a tractor-trolley and got  admitted in  Civil  

hospital, Ladwa. The police came there and recorded statement,Ex. PD/2 which was  

thumb-marked by him in token of its correctness.

5. Injured Sher Singh and Shamsher Singh were got medico-legally examined.  

Sher Singh, who had been referred to P.G.I. Chandigarh,succumbed to the injuries  

on 13.2.1993, where upon Faqir Chand ASI (PW-12) conducted inquest proceedings  

Ex. PJ/3 and autopsy was conducted by Dr. B.Suri (PW-14). From the accused side  

all  the  three  suffered  injuries  and  were  medico-legally  examined  by  PW-2  Dr.  

P.R.Pruthi, Medical Officer, CHC, Ladwa.

6.  After  investigation,  accused were challaned for  the offence and a charge  

under Section 302 and 323 read with Section 34 of  the Indian Penal  Code was  

framed against the accused to which they pleaded not guilty and claimed trial.

7. In order to substantiate the accusations, prosecution examined 14 witnesses.  

The accused persons, to support their plea of innocence, examined the Draftsman  

DW1. The trial court found that the evidence is not sufficient to establish the guilt of  

the accused person and accordingly directed acquittal. The same was questioned in  

appeal before the High Court. The stand of the State before the High Court was that  

the injury was caused to Sher Singh and Shamsher Singh. Sher Singh had died and  

Samsher Singh was an injured eye-witness who appeared as PW10. PW9 was eye-

witness who was present at the spot where the incident took place. It was stated that  

the accused persons also had sustained injuries and had taken similar plea in their  

defence. The accused persons placed reliance on the evidence of Dev Singh. In his  

statement  made to  the police  he  had stated about  having reached  the place  of  

occurrence after hearing the cries for help. The High Court noticed that the trial court  

was justified in holding that Dev Singh and Prem Singh had reached the spot after  

hearing the cries. The High Court also noticed that the possibility of injuries on the  

body of  the  deceased  and  the  accused  could  not  be  directly  attributable  to  the  

accused persons. The trial court and the High Court noticed that the occurrence took  

place in the course of free fight and there were more severe injuries caused on the  

person of the accused person than the deceased and the so-called eye witness.  

Considering the nature of evidence, the trial Court and the High Court have come to  

hold that the prosecution version is not acceptable. In the circumstances, the High  

Court observed that the number of injuries make it clear that it was a case of free

fight and it cannot be ascertained as to which party was the aggressor. Therefore,  

the view taken by the trial court was a possible view and the High Court did not  

interfere.

8. Learned counsel for the appellant-State vehemently argued that the analysis  

made by the trial court and the High Court and the conclusions arrived at are not in  

line with the evidence adduced including that of the eye-witness and injured eye-

witness.  Learned counsel  for  the respondent  supported the judgment  of  the trial  

court as upheld by the High Court.

9. Having heard learned counsel for the parties we feel that both the trial court  

and High Court were justified in their respective view.

10.  There  is  no  scope  for  interference  in  this  appeal  which  is  accordingly  

dismissed.