Punjab-Haryana High Court
Jasmer Singh vs State Of Haryana And Others on 5 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Misc. No.A-988-MA of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.A-988-MA of 2011 (O&M)
Date of Decision: 05.12.2012
Jasmer Singh
.....Applicant
Versus
State of Haryana and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. Ashok Giri, Advocate
for the applicant.
****
1. To be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
Crl. Misc. No. 66285 of 2011 The applicant seeks condonation of delay of 14 days in filing the application under Section 378 (4) of the Code of Criminal Procedure ('Cr.P.C.' for short), for grant of leave to file an appeal against the judgment of acquittal.
After hearing the learned counsel for the applicant, this application is allowed for the reasons stated therein. Delay of 14 days stands condoned.
Criminal Misc. No. A-988-MA of 2011 The instant application under Section 378 (4) Cr.P.C., has been filed by the complainant, seeking leave to file appeal against Criminal Misc. No.A-988-MA of 2011 (O&M) 2 the impugned judgment of acquittal dated 17.8.2011, passed by the learned Sessions Judge, Karnal, whereby the accused-respondents were acquitted of the charge framed against them.
The criminal law was set into motion was by the applicant- complainant alleging that the accused-respondents have committed the offence in question. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts recorded by the learned trial court and the same read, as under:-
The facts giving rise to the prosecution case are as under:-
That Jasmer Singh had put the police machinery into motion by getting his report Ex.PA lodged with the police to the effect that he was married to Meena Devi daughter of Nafe Singh on 03.12.2008. He further stated that after 5/7 days of the marriage, she started picking up quarrels without any cause and started expressing that she does not want to live with him. This fact was disclosed by the complainant to the parents of Meena Devi. Thrice panchayats were held. Matter was got settled in the panchayat but after few days Meena Devi started behaving in the same manner. As per complainant for the last 5/6 days from the date of making this complainant, she had Criminal Misc. No.A-988-MA of 2011 (O&M) 3 been telling the complainant to leave her at her parents house. As such on the day of the occurrence, i.e. on 22.02.2009 at about 10/11AM, complainant's father Ram Singh had taken accused Meena Devi by motorcycle in order to leave her at her parents house. At 2.30PM, complainant received a telephonic call from his father that complainant's father-in-law, namely, Nafe Singh, Meena Devi (wife) and sister-in-law Pinki and Meena's uncle Hawa Singh in furtherance of their common intention administered poison to him after mixing the same in his meal. He also told the complainant that his condition has already become worse. On this information, complainant alongwith his uncle Nafe Singh and Sarpanch Balwan Singh has gone to Amargarh i.e. at the house of Meena. On the way at village Sandhir, people from complainant's in-laws met him as they were bringing his father by motorcycle. From Nilokheri, the complainant hired a vehicle and took his father for treatment to Dr. Gian Bhushan Hospital, Karnal. There the doctor refused to treat his father and from there they Criminal Misc. No.A-988-MA of 2011 (O&M) 4 had taken Ram Singh to Dr. Rajiv Gupta Hospital, Karnal. That doctor also referred him to Civil Hospital, Karnal. While they were taking him to Civil Hospital, Karnal, his father breathed his last.
On 22.02.2009 itself, at about 4.40PM Jaspal Singh SI(PW.11) received a telephonic message from Police Station Butana that the dead body of Ram Singh was lying in mortuary in General Hospital, Karnal and it was a case of poison. On receipt of this information, SI Jaspal Singh came to General Hospital, Karnal and at the main gate of hospital Jasmer Singh PW met him and he gave statement Ex.PA to SI Jaspal Singh which was read over to him and he signed the same to token to its correctness. SI Jaspal Singh made his endorsement Ex.PA/3 on the statement of Jasmer Singh and sent the same to police station through Constable Sandeep (PW.9) on the basis of which FIR Ex.PA/1 was recorded by Surat Singh.ASI (PW.3), who also made his endorsement Ex.PA/2 on the ruqqa and sent it back through the same constable. ASI Surat Singh Criminal Misc. No.A-988-MA of 2011 (O&M) 5 also sent special report of this case through HC Ravinder (PW.4), who delivered the same to Illaqa Magistrate and higher police officers without any delay on his part. SI Jaspal Singh summoned photographer Constable Pardeep Kumar (PW.2) who took four snaps Ex.P1 to Ex.P4 of the dead body of Ram Singh from different angles.
On 23.02.2009 SI Jaspal Singh carried out inquest proceedings Ex.PF/2. On the same day SI Jaspal Singh moved application Ex.PF for conducting post mortem examination on the dead body of Ram Singh on which a Medical Board comprising of Dr. Munish Garg PW8 and Dr. Geetanjali was constituted, who conducted autopsy on the dead body of Ram Singh vide PMR Ex.PF/1. The opinion was kept pending subject to receipt of FSL report and report from PGIMS, Rohtak. After post mortem examination the doctors handed over a sealed parcel containing viscera, another sealed parcel containing clothes viz. Kurta Ex.P5, paijama Ex.P6, sweater Ex.P7, nicker/underwear Ex.P8, pair of socks Ex.P9 and Ex.P10 and banian Ex.P11 which were removed from the Criminal Misc. No.A-988-MA of 2011 (O&M) 6 dead body of Ram Singh at the time of post mortem examination, and one plastic container in a sealed parcel along with papers to Constable Sandeep Kumar (PW.9), who delivered the same to SI Jaspal Singh who took the same into police possession vide memo Ex.PH which was attested by Constable Sandeep Kumar and ASI Manphool Singh. After post mortem examination the dead body of Ram Singh was handed over to its relatives vide receipt Ex.PK. On the same day SI Jaspal Singh inspected the scene of occurrence and prepared its rough site-plan Ex.PL with correct marginal notes. PWs Des Raj son of Dile Ram and Krishan son of Karam Singh were joined in the investigations by SI Jaspal Singh and PW Des Raj produced a shirt which Ram Singh was wearing at the time of taking him to the hospital and some froth emitting out of his mouth was fallen on it, to SI Jaspal Singh who took the same into police possession vide memo Ex.PI, which was attested by ASI Manphool and Constable Sandeep. On return to police station the case property was deposited with Criminal Misc. No.A-988-MA of 2011 (O&M) 7 MHC of police station with seals intact. After completion of the investigation, report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused persons, in accordance with law. Since the offence under Section 306 of the Indian Penal Code ('IPC' for short), was found to be exclusively triable by the learned court of Sessions, learned Illaqa Magistrate, vide order dated 31.7.2009, committed the case to the learned court of Sessions Judge, for its trial.
Having found a prima facie case against the accused, they were charge sheeted for the offence punishable under Sections 306/34 IPC. However, during the trial, charge was amended and the accused were charge sheeted for the offence punishable under Sections 302/34 IPC, vide order dated 24.2.2010. The accused pleaded not guilty and claimed trial.
With a view to substantiate the charge, the prosecution examined as many as 14 PWs, besides tendering relevant documents in evidence. After conclusion of the prosecution evidence, separate statements of the accused-respondents were recorded under Section 313 Cr.P.C. All the incriminating material brought on record, was put to the accused who alleged false implication and claimed themselves to be innocent. Opting to lead defence evidence, accused examined as many as 5 DWs, besides tendering the relevant documents in their defence evidence.
After hearing the parties and on careful examination of the evidence brought on record, the learned trial court held that the Criminal Misc. No.A-988-MA of 2011 (O&M) 8 prosecution had failed to prove its case beyond reasonable doubt. Thus, giving benefit of doubt, the accused-respondents were ordered to be acquitted of the charge framed against them, vide judgment dated 17.8.2011.
Feeling aggrieved against the above said judgment of acquittal, the applicant-complainant has approached this Court, by way of instant application. That is how, this Court is seized of the matter.
Learned counsel for the applicant vehemently contended that learned trial court has proceeded on erroneous approach, while not appreciating the cogent evidence, in the right perspective. He further submits that sufficient evidence has been brought on record for recording the conviction of the accused. He concluded by submitting that since the impugned judgment was based on a misconceived approach, the same was not sustainable in law.
Having heard the learned counsel for the applicant, after going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file appeal against the impugned judgment. To say so, reasons are more than one, which are being recorded hereinafter.
Firstly, it was the own pleaded case of the prosecution that the complainant received a telephonic call from the mobile number of his father (deceased), that he had been forcibly administered the poisonous substance by the accused-respondents. However, the prosecution has miserably failed to prove this fact by not producing Criminal Misc. No.A-988-MA of 2011 (O&M) 9 the relevant call details. The accused-respondents Hawa Singh, uncle of accused-respondent Meena, was residing separately from his co-accused and had, as a matter of fact, no reason to give poison to Ram Singh-deceased. This apparent false implication of accused- respondent Hawa Singh has created a serious doubt in the prosecution story. In this view of the matter, this Court feels no hesitation to conclude that the prosecution has failed to prove its case beyond reasonable doubt.
It was the further specifically pleaded case of the prosecution that Desraj and Krishan Kumar were found taking Ram Singh-deceased on their motorcycle to the hospital, after he had been allegedly administered the poisonous substance by the respondents. Surprisingly, none of these persons was produced as prosecution witness and they were given up by the prosecution. Thus, these persons would have been most material witnesses to the prosecution. Their non examination as PWs again creates serious doubt in the prosecution version.
On the other hand, Krishan Kumar was produced as DW3 and Des Raj was produced as DW2. Thus, it is unhesitatingly held that the prosecution has put up a concocted story and miserably failed to prove it. Further, the learned trial court, before arriving at a judicious conclusion, has recorded cogent findings, which read as under:-
Lastly, it was argued by learned defence counsel that in this case there is delay of ten hours. Alleged occurrence is of Criminal Misc. No.A-988-MA of 2011 (O&M) 10 2.30PM whereas the FIR was lodged at 9.40PM. During this period, the complainant was having sufficient time to make consultation and to involve as many persons as accused as he likes. The possibility of thought out and coloured version given by complainant in this case cannot be ruled out.
On perusal of file, it transpires that statement of Jasmer Singh was recorded by the police at about 8.40PM. In fact Ram Singh was taken. to General Hospital, Karnal at about 4.15PM. This time finds mention in rukka sent by doctor to Police Post, General Hospital, Karnal and which is Ex.DB. After sending of rukka and recording of statement of Jasmer Singh, though there is some time gap, yet it cannot be said that only on account of delay in lodging of FIR, the prosecution case has to go.
The next contention raised by learned defence counsel is that the statement of Krishan Kumar DW3 was recorded under section 161 Cr.PC on 02.06.2009 and also supplementary statement of Jasmer Singh Ex.DA was recorded on 02.06.2009 whereas the challan in this case was prepared on 30.05.2009. As such, the investigation of this case cannot be said to be free from doubts; is not sustainable. In fact though the report under section 173 Cr.PC was prepared on 30.05.2009 yet this date appears to have been written at a subsequent stage and further from perusal of report under section 173 Cr.PC, it Criminal Misc. No.A-988-MA of 2011 (O&M) 11 becomes clear that the challan was made to court by learned District Attorney on 04.06.2009 and was then filed in the court on 05.06.2009. Prior to the filing of the challan in the court, if police continue with the investigations, nothing wrong can be said to be there.
Learned counsel for the applicant has failed to point out any piece of cogent evidence which might have been altogether ignored by the learned trial court while rendering the impugned judgment, so as to convince this Court to take a different view than the one taken by the learned trial court. Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of accused, is to be followed by the Court.
The view taken by this Court also finds support, from the judgment of the Hon'ble Surpeme Court, in the case of Arulvelu & anr.vs. State represented by the Public Prosecutor and anr. 2009 (4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para No.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:Criminal Misc. No.A-988-MA of 2011 (O&M) 12
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court.
The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to Criminal Misc. No.A-988-MA of 2011 (O&M) 13 the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :-
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 reverse 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 Criminal Misc. No.A-988-MA of 2011 (O&M) 14 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 certain 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 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 acquittal, 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 Criminal Misc. No.A-988-MA of 2011 (O&M) 15 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that there is no illegality or perversity in the impugned judgment, which is sine qua non for interference by this Court, in a judgment of acquittal.
In view of the above, the present application is bereft of any merit and without any substance. No case for interference has been made out.
Resultantly, the instant application under Section 378 (4) Cr.P.C., seeking leave to file appeal, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
5.12.2012
Ak Sharma