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PETITIONER: JAI PAL & ANR., JAI SHAM

       Vs.

RESPONDENT: STATE OF U.T. CHANDIGARH & ORS.

DATE OF JUDGMENT:       29/07/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T M.K. Mukherjee, J      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

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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.