Punjab-Haryana High Court
Money vs State Of Punjab And Another on 3 November, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A-661-MA of 2012 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRM A-661-MA of 2012 (O&M)
Date of decision:03.11.2012
Money
...Applicant
Versus
State of Punjab and another
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.G.S.Singhpuria, Advocate,
for the applicant.
RAMESHWAR SINGH MALIK, J.
CRM No.45666 of 2012 The applicant, by way of this application under Section 5 of the Limitation Act read with Section 482 Cr.P.C., seeks condonation of delay of 741 days in filing the application under Section 378 (4) Cr.P.C., for grant of leave to appeal against the judgment of acquittal dated 25.5.2010, passed by the learned trial Court.
After hearing the learned counsel for the applicant and going through the record of the case, this Court is satisfied that sufficient reasons have been assigned explaining the delay.
Having considered the averments taken, the present application is allowed for the reasons stated therein and the delay of 741 days is ordered to be condoned.
CRM A-661-MA of 2012 The instant application under Section 378 (4) of the Code of CRM A-661-MA of 2012 2 Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgment of acquittal dated 25.5.2010, passed by the learned Sessions Judge, Ferozepur, whereby accused/respondent No.2 was acquitted of the charge, giving him benefit of doubt.
The criminal law was set into motion by the applicant, with the allegations against the accused/respondent No.2, for committing the offences under Sections 376/406 IPC. In order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts, noted above by the learned trial Court in para 2 of the impugned judgment and the same read as under:-
"2. Shortly put, the case of the prosecution, as unfolded by the prosecutrix (name not to be disclosed), in his application Ex.P1 moved before the Senior Superintendent of Police, Ferozepur, is that her father Anand Parkash had solemnized her marriage in the year 1995 with one Parag Arora of New Delhi. Out of that wedlock, one male child namely Ayush was born. She could not pull on with her husband Parag Arora, on account of his mis-deeds and in the year 2003, their marriage was dissolved by a decree of divorce. After that, she along with her son started residing with her parents at Abohar. Ranjit Singh son of Sampuran Singh resident of Abohar, who was a close friend of her father, was having full knowledge about all these facts. Said Ranjit Singh was also having acquaintance with Kaur Chand, Sohan Lal and CRM A-661-MA of 2012 3 Krishan Lal. These persons told Ranjit Singh that Krishan Lal accused was married with Bimla Devi about 18/20 years ago. As no issue was born out of this wedlock, Bimla Devi renounced this world and started living the life of a SANYASIN and used to indulge in prayers while living in the upper portion of the house. It was also told that now there was no cohabitation between Krishan Lal accused and Bimla Devi and as such they were in search of a widowed or divorcee for Krishan Lal accused. Ranjit Singh further told these facts to the father of the prosecutrix and a deal was struck that Krishan Lal accused would take a legal divorce from his previous wife Bimla Devi and only thereafter, he would contract second marriage with the prosecutrix, but before that, they would solemnize marriage in a temple. It was also settled that till the divorce is granted by the court, prosecutrix would take care of the house of Krishan Lal, while living there. On 12.11.2003, all the afore said persons including accused Krishan Lal along with their relations came to the house of prosecutrix and took her along with them to the house of the accused at Sangria (Rajasthan). The previous son of prosecutrix was left with her parents. Her parents also gave dowry articles in the shape of 23 tolas of gold as well as precious clothes. On reaching the house of Krishan Lal accused, prosecutrix came to know that accused Krishan Lal had already adopted his nephew (son of his CRM A-661-MA of 2012 4 brother) named Ani (Neeraj) and niece (daughter of his sister) named Sakshi. While concealing these facts from the prosecutrix, Krishan Lal accused started committing sexual intercourse with her, under the pretext that she was his real wife and that there was no need of taking legal divorce on papers from the Court, from his previous wife Bimla Devi. From the loins of accused Krishan Lal, prosecutrix gave birth to a male child. With a view to grab the property of accused Krishan Lal and that the son of prosecutrix may not inherit the property of Krishan Lal accused, Kaur Chand and Sohan Lal along with their respective wives even tried to kill her son on 20.9.2006. However, she managed to save the life of her son and came to Abohar. The matter was taken with the local police, but no action was taken, it being a domestic affair.
On the basis of above-said facts stated by the applicant, FIR was registered and investigation was started by ASI Gurmit Singh. He visited the house of Anand Parkash (father of the prosecutrix) and recorded their statements. He also visited the house of Ranjit Singh and recorded his statement under Section 161 Cr.P.C. On the transfer of ASI Gurmit Singh, investigation was handed over to SI Jarnail Singh, who arrested the accused-respondent on 30.3.2007.
After completion of the investigation, report under Section 173 Cr.P.C. was presented to the learned Illaqa Magistrate only against accused/respondent No.2, whereas remaining accused Kaur Chand, CRM A-661-MA of 2012 5 Sohan Lal, Ved Parkash, Manju, Santosh and Asha Rani were found innocent. The relevant documents were supplied to the accused. The offences under Sections 376/406 IPC having been found to be exclusively triable by the court of session, the case was committed for trial to the court of session. Finding a prima-facie case made out against the accused, charge was framed for the offence punishable under Sections 376/406 IPC. The accused pleaded not guilty to the charge and claimed trial.
The prosecution, in order to prove its case, examined as many as five prosecution witnesses, besides tendering the relevant documents in evidence. During the course of trial, an application under Section 319 Cr.P.C. was moved for summoning Kaur Chand, Sohan Lal, Ved Parkash, Manju, Santosh and Asha Rani, as additional accused to face trial alongwith accused-respondent Krishan Lal. However, that application was dismissed by the learned trial Court vide order dated 27.3.2008.
After conclusion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. He alleged false implication and claimed complete innocence. He stated that he had adopted his niece Sakshi (daughter of his sister) and nephew Neeraj (son of Ved Parkash) but there was no one to look after them. Faced with this difficulty, he employed the applicant-complainant as care taker on 31.10.2003 to look after his adopted children. However, the applicant developed physical relations with him and gave birth to a son. CRM A-661-MA of 2012 6 He never promised to marry her, as wrongly alleged. However, the accused did not produce any defence evidence.
After hearing both the parties and appreciating the evidence brought on record, the learned trial Court held that prosecution has failed to prove its case. Giving benefit of doubt to the accused, he was acquitted of the charge framed against him, vide impugned judgment dated 25.5.2010.
Feeling aggrieved against the judgment of acquittal dated 25.5.2010, passed by the learned Sessions Judge, Ferozepur, the applicant has approached this Court by way of instant application. That is how, this Court is seized of the matter.
Learned counsel for the applicant has vehemently contended that the respondent-accused kept on physically exploiting the applicant for about three years giving her the assurance that he would marry her. He further submitted that cogent evidence was brought on record to prove the case but the learned trial Court has failed to appreciate the same. He concluded by submitting that since sufficient and convincing evidence has been brought on record bringing home the guilt against the accused, the impugned judgment was liable to be set aside.
Having heard the learned counsel for the applicant, careful perusal of the record and after 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 an appeal against the impugned judgment of acquittal. The reasons are more than one, which are being recorded hereinafter.CRM A-661-MA of 2012 7
Firstly, in the present case, the prosecutrix was a mature lady of 32 years of age and it does not appeal to reason that she would be allured by the accused. Further, considering the peculiar fact situation of the present case, this Court is of the considered view that the applicant- prosecutrix was a consenting party. When she appeared as PW-1, she admitted in her cross-examination that she had studied up to B.A. She was well aware that if a man was to marry for the second time, he was to get the divorce from his first wife. It has also gone undisputed on record that the prosecutrix was sent by her own parents alongwith the accused on 12.11.2003 and a male child was born to the prosecutrix from the loins of accused Krishan Lal on 25.8.2004.
Even after the birth of the child, prosecutrix resided with the accused till 20.9.2006. Thus, she resided with the accused for about three years. Admittedly, accused and prosecutrix were having physical relations with each other during all this long period of about three years. Thus, under no circumstances, it can be said that she was not a consenting party. We say so because the applicant-prosecutrix never complained in this regard either to the police authorities or to her parents. Her own statement has demolished her case.
Secondly, so far as the offence under Section 406 IPC was concerned, there was no evidence on record that any gold ornaments and costly clothes were handed over to the accused. PW-3 Anand Parkash (father of the prosecutrix-applicant), has not given any weight of the gold ornaments, when he got his statement recorded before the police. However while appearing in the Court, he deposed that gold ornaments CRM A-661-MA of 2012 8 were weighing about 23 tolas. On the other hand, PW4-Ranjit Singh, during his cross-examination, stated that it was not got recorded by him in his statement made before the police vide Exh. D2, that Anand Parkash also gave 20/25 tolas gold and valuable clothes to his daughter. Even if this evidence of the prosecution is accepted to be true, it goes against the prosecution itself because in that situation, it would amount, at the most, a matrimonial dispute.
Thirdly, the prosecution witnesses have tried to make material improvements contradicting each other. There were many serious discrepancies in the prosecution evidence which create serious doubt in the prosecution story. In this view of the matter, it is unhesitatingly held that the prosecution has miserably failed to prove its case.
Learned counsel for the applicant has failed to point out any glaring illegality in 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 the accused, is to be followed by the Court.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme 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 Nos.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:CRM A-661-MA of 2012 9
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:
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 CRM A-661-MA of 2012 10 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 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 CRM A-661-MA of 2012 11 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 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 CRM A-661-MA of 2012 12 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 CRM A-661-MA of 2012 13 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."
No other argument was raised.
Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, this Court is of the considered opinion that the learned trial Court has not committed any error of law. No patent illegally or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been made out.
Resultantly, the present application under Section 378 (4) Cr.P.C., being bereft of any merit and without any substance, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
03.11.2012
mks