Punjab-Haryana High Court
Harbans Kaur vs Jagdev Singh And Others on 20 March, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
Crl. Misc. No.-A-794-MA of 2011 (O & M) &
Crl. Misc. No. A-82-MA of 2012 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
Crl. Misc. No.A-794-MA of 2011 (O & M)
Date of decision : 20.3.2012
Harbans Kaur .......Applicant
Versus
Jagdev Singh and others ..........Respondents
Crl. Misc. No.A-82-MA of 2012 (O & M)
State of Punjab .......Applicant
Versus
Jagdev Singh and others ..........Respondents
CORAM :Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
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Present:- Mr. APS Deol, Senior Advocate with
Mr. Vishal Rattan, Advocate, for the applicant in
Crl. Misc. No.A-794-MA of 2011
Mr. KDS Sidhu, Addl. AG, Punjab in
Crl. Misc. No.A-82-MA of 2012
Jasbir Singh, J.
Against judgment and order dated 29.7.2011 and 30.7.2011, respectively, applicant-Harbans Kaur has filed this application under Section 378(3) Cr.P.C., seeking leave to file an appeal. The State of Punjab has also filed a similar application. This order will dispose of both the applications.
Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -2- As per record, against respondent Nos. 1 to 8, an FIR No.60 was registered on 25.7.2007, with the allegations that on the above date, at noon, in the area of Alhoran Gate, Nabha, they formed an unlawful assembly with deadly weapons, hatched a criminal conspiracy to do an illegal act to cause injuries on the person of Gurbir Singh and to commit murder of Karamjit Singh, in pursuance thereof, they intentionally caused death of Karamjit Singh and caused serious injuries on the person of Gurbir Singh by criminally tres- passing, to commit mischief by causing loss and damage to the property.
Process of law was started on a statement made by Nazar Singh-respondent No.7. His statement was recorded by Ramjit Dass ASI, whereupon an FIR was recorded against respondent Nos. 1 to 6 and 8 on 25.7.2005. Injured Karamjit Singh was taken to PGI, Chandigarh and he died on 27.7.2005.
The trial Judge has noted the following facts regarding case of the prosecution:-
"that on 25.7.2005 between 12 to 1 noon the informant Nirbhey Singh paternal uncle of Nazar Singh and their partners Gurbir Singh and Karamjit Singh were sitting in the shop of Nazar Singh. In the meanwhile Jaggi alias Jagdev Singh armed with sword, Letti @ Paramdeep Singh armed with gandasi, Binder alias Devinder armed with gandasi, Harinder Singh armed with gandasi, vicky and Sandeep armed with gandasis accompanied by 10/12 other persons who were Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -3- having muffled faces entered forcibly the shop of Nazar Singh and attacked Gurbir Singh and Karamjit Singh with the intention to kill them. At that time Jaggi alias Jagdev Singh gave kirpan blow on the head of Karamjit Singh but in order to ward off the blow he raised his right arm and the blow hit on his elbow. Then accused Letty alias Paramdeep Singh gave gandasi blow on the head of Gurbir Singh, Binder gave gandasi blow on the forehead of Gurbir Singh, Harinder Singh gave gandasi blow from its sharp side on the back of Gurbir Singh. Vicky gave gandasi blow on the nose of Gurbir Singh, Sandeep Singh gave gandasi blow on the right side of flank and many other persons also gave blows with gandasi and other weapons. They also broken the window panes of the shop and also caused loss to the car bearing registration No. HR-06E-4257. Various persons of the market collected there and the accused fled away with their respective weapons. The injured were immediately rushed to the hospital."
After getting intimation regarding the above occurrence, the investigating officer came into action. After getting post-mortem report of Karamjit singh and medico legal report of Gurbir Singh, the investigating officer arrested the accused. On disclosure statements made by them, weapons of offence were recovered. On completion of investigation, Tapinderjit Singh-respondent No.8 was declared innocent, however, subsequent thereto, he was summoned to face trial as per provisions of Section 319 Cr.P.C.
Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -4- On completion of investigation, final report was put in Court. Copies of the documents were supplied to all the accused as per norms. Case was committed to the competent Court for trial. On 10.12.2008, they were charge sheeted for commission of offence under Sections 302, 307, 326, 324, 427, 452, 148/149 IPC. The prosecution produced 19 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They led no evidence in defence.
It is necessary to mention here that Nazar Singh-respondent No.7 was also arrayed as an accused after recording statement of Gurcharan Singh (PW 14).
The tril Judge on appraisal of evidence acquitted respondent Nos. 7 and 8 and others were convicted for commission of offence under Section 304 Part I IPC and also under Sections 307, 326, 324 and 323 read with Section 149 IPC.
Counsel for the applicant has vehemently contended that respondent No.7 was a conspirator. At his instance, deceased was killed. Qua respondent No.8 also, there exists sufficient evidence on record.
After going through the paper book, this Court is of the opinion that the trial Judge was justified in acquitting respondent Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -5- Nos. 7 and 8 vide judgment under challenge.
When giving above relief to both of them, it was observed as under :-
"37. Accused Nazar Singh has been arraigned solely on the statement of PW 14 Gurcharan singh. It is alleged by the prosecution that he shared criminal conspiracy but there is no convincing evidence that he shared criminal conspiracy or he was member of unlawful assembly, rather t6here is evidence that he called the complainant as well as the accused party to arrive at compromise. No role has been attributed to him in the FiR. There is no reliable evidence of criminal conspiracy against him. PW Nirbhai Singh in his police statement Ex.PP has clearly stated that he alongwith Nazar Singh had arranged a vehicle and shifted the injured to civil Hospital, Nabha. Nazar Singh accused got admitted the injured in the hospital which is evidence from bare perusal of MLR Ex.PD of Balbir Singh. At the time of recording inquest report he was also present.
38. Accused Nazar Singh has been arraigned solely on the statement of PW 14 Gurcharan Singh who has stated that Nazar Singh came to him on 4.9.2005 and disclosed that he called both the parties to his shop for the purpose to settle the dispute but when the dispute could not be settled, accused Jaggi, Harjinder Singh inflicted injuries upon Karamjit Singh. A close scrutiny of the statement of PW 14 Gurcharan Singh does not evolve the liability of Nazar Singh. No injury has Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -6- been attributed to him. He is the paternal uncle of PW Nirbhai Singh. There is dearth of evidence against him. Therefore, he is entitled to the benefit of doubt.
39. So far as accused Tapinderjit Singh is concerned, he is not named by PW 9 Gurpreet Singh. Initially he was found innocent and not challaned alongwith the six accused. At the time of recording of statements Ex.PO and Ex.PS of Gurbir Singh and Nirbhai Singh respectively he had not faced the trial and whatever Gurbir Singh and Nirbhai Singh in their statements Ex.PO and Ex.PS have stated, those cannot be considered qua Tapinder Singh as those are recorded at his back. Thus, Tapinderjit Singh alias Sandeep is also entitled to benefit of doubt which is hereby given to him."
It is an admitted fact that during investigation, respondent No.8 was found innocent and his name was put in column No.2 of the final report. Respondent No. 7 was also arrayed as an accused after recording statement of PW 14 Gurcharan Singh.
We have gone through the statement made by PW 14 and are satisfied that on the basis of testimony of above witness, verdict of guilt cannot be passed against the above respondents. The opinion arrived at by the trial Judge is as per evidence on record.
The trial Judge has further rightly held in paragraph Nos. 42 and 43 that the offence committed by respondents is covered under the provisions of Section 304 Part I IPC.
The view taken by the trial Judge is perfectly justified and Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -7- as per evidence on record.
Their Lordships of the Supreme Court in "Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR(Criminal) 748', held that where in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das and others v. The State of Tripura, 2011 (9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -8- "An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate Court is competent to referse the decision of the trial Court depending on the materials placed."
Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602, the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the Court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certin fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -9- acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittalo, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicants have failed to indicate any Crl. Misc. No.-A-794-MA of 2011 (O & M) & Crl. Misc. No. A-82-MA of 2012 (O & M) -10- misreading of evidence on the part of the trial Judge. No legal lacuna has been indicated which may necessitate interference by this Court.
Application bearing Crl. Misc. No.A-82-MA of 2012, filed by the State, is also barred by limitation of 120 days. No ground is made out to condone delay as well.
Both the applications are dismissed.
A copy of the order be placed on the file of connected case.
(JASBIR SINGH) JUDGE (SABINA) JUDGE 20.3.2012 gk