Punjab-Haryana High Court
Darshan Singh vs State Of Punjab And Others on 21 March, 2013
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-118-MA of 2013 (O&M)
Date of Decision: 21.3.2013
Darshan Singh
... Applicant
Versus
State of Punjab and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Inderjit Singh Present: Mr. Baljinder Singh Sra, Advocate for the applicant.
Jasbir Singh, Judge By filing this application under Section 378(4) Cr.P.C., the applicant is seeking leave to file an appeal against judgment dated 17.10.2012 acquitting respondents No.2 to 6 of the charges framed against them.
Against the above respondents, the applicant/complainant filed a criminal complaint for commission of offences under Sections 326, 323, 325, 504, 506, 148 & 149 IPC and Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After recording preliminary evidence, the respondents/accused were summoned to face trial. Taking note of facts of the case, it was committed for trial to the competent Court vide order dated 14.3.2011.
The trial Judge has noted the following facts regarding case of the complainant:-
Criminal Misc. No. A-118-MA of 2013 (O&M) 2
"2. Briefly stated, facts of the case are that complainant Darshan Singh had filed a criminal complaint against Jaswant Singh son of Gurnam Singh; Rashpal Singh, Bikramjit Singh, Balraj Singh sons of Jaswant Singh; Surjit Singh son of Sampuran Singh, all residents of village Bal Khurd, tehsil and District Amritsar, for offences under sections 326, 323, 325, 504, 506, 148, 149 of the Indian Penal Code and section 3(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Majitha, on the allegations that he (complainant) belongs to Mazbi Sikh community, which, is a scheduled caste category in the State of Punjab, whereas, all the accused belong to Jat Sikh community, which, is a non-scheduled caste category. That there was a common shamlat plot, which vest in Gram Panchayat of village Bal Khurd and in that plot, all the members of Mazbi Sikh community of the village have been placing cattle dung cakes. Opposite to that shamlat land, the accused have got shops. Kartar Kaur wife of complainant Darshan Singh, had placed cattle dung cakes in the shamlat plot of Gram Panchayat. All the accused had been trying to take forcible possession of that plot and complainant had stopped them many times from doing so. That on 22.3.2003, at about 11/12 a.m, complainant's wife, Kartar Kaur, and daughter-in-law, were present in the vacant plot preparing cow dung cakes, where, all the accused came. At that time, Jaswant Singh was armed Criminal Misc. No. A-118-MA of 2013 (O&M) 3 with a hockey stick; Rashpal Singh was armed with a dang; Bikramjit Singh was armed with a kirpan; Balraj Singh and Surjit Singh empty handed. All of them said that these "Kutte Chuhare" (Chuhra dogs) should be taught a lesson for preventing them from taking possession of shamlat land. Accused Surjit Singh raised a lalkara that wife of complainant, namely, Kartar Kaur be killed, thereupon, Surjit Singh, accused, caught hold of Kartar Kaur from her hair and accused Bikramjit Singh gave kirpan blow to her, which hit near her right ear. Accused Jaswant Singh gave a blow with hockey stick, which hit Kartar Kaur on her right arm. Accused Rashpal Singh gave a dang blow to Kartar Kaur, which hit on elbow of her right arm. Wife of complainant, Kartar Kaur, and his daughter-in-law, raised alarm, whereupon, all the accused ran away from the spot alongwtih their respective weapons while threatening the complainant and his family with dire consequences, uttering that these "Kutte Chuhare" would not be left alive."
It is case of the applicant that the matter was reported to the police, when no action was taken, he was forced to file a criminal complaint. After commitment, the respondents/accused were charge sheeted to which they pleaded not guilty and claimed trial.
To prove his case, the complainant produced four witnesses and also brought on record documentary evidence. On conclusion of the prosecution evidence, separate statements of all the Criminal Misc. No. A-118-MA of 2013 (O&M) 4 respondents/accused were recorded under Section 313 Cr.P.C. Incriminating evidence, appearing against the accused, was put to them which they denied, claimed innocence and false implication. It was specifically stated by them that Kartar Kaur, injured, had fabricated the injuries at her person with a view to save the complainant etc. in a cross case which already stood registered at the instance of the respondents/accused. They also led evidence in defence to prove that on 23.3.2003, at the hands of complainant party, injuries were received by Gurnam Singh, Bikramjit Singh and Kanwaldeep Singh members of the respondents/accused party.
The trial Judge, on appraisal of evidence, found case of the prosecution, doubtful. Delay in filing the complaint was rightly taken against the complainant. Occurrence alleged to have taken place on 22.3.2003. The complaint was filed on 16.4.2003 in the Court. There is nothing on record to prove that prior thereto the applicant/complainant had approached the police authorities. It is further noticed that for the alleged injuries received on 22.3.2003, Kartar Kaur was medicolegally examined only on 31.3.2003. It is contention of counsel for the applicant that on account of connivance of the police officials and the doctors, she was not medicolegally examined. Her medicolegal examination was done only under orders of the Court. The above argument was rejected by the trial Court noting that there is nothing on record that at any time, before filing of the complaint, an attempt was made to get Kartar Kaur admitted in a hospital. If the doctors were not co-operating, it was duty of the complainant to make representation to the higher authorities, Criminal Misc. No. A-118-MA of 2013 (O&M) 5 however, it was not done. It was noted that medical evidence did not support case of the complainant. To say so, it was observed as under:-
"12. The medical evidence does not corroborate the ocular evidence. PW2 Dr. Amarjit Singh Virk, Radiologist, stated that on 3.4.2003, while he was posted and working as Radiologist at Civil Hospital, Amritsar, on that day, he gave x- ray opinion regarding x-ray examination of Kartar Kaur wife of Darshan Singh, aged 45 years, resident of village Bal Khurd, pertaining to her right forearm and wrist, observing that there was a cut fracture of styloid process of ulna alongwith fracture distal end of radius, though, on x-ray examination of right elbow, no bone injury was detected. It is to be taken note of, that the incident in which Kartar Kaur is alleged to have suffered injuries according to defence please, had taken place on 22.3.2003, whereas, x-ray examination took place on 3.4.2003 i.e. on the 12th day and it cannot be said that the same relate to the injuries suffered on 22.3.2003. In his cross- examination, the doctor (PW2) stated that he was not having any skiagram and was unable to give age of fracture without seeing the skiagrams. Such type of deposition can not be given much value.
13. PW3 Dr.Ashwani Kumar Sondhi, stated that on 31.3.2003, while he was posted as Medical Officer at Civil Hospital, Amritsar, on that day, at 10.50 PM, Kartar Kaur wife of Darhsan Singh, aged 45 years, resident of village Bal Criminal Misc. No. A-118-MA of 2013 (O&M) 6 Khurd, was admitted in their hospital upon court order issued by the court of Shri Sanjiv Joshi, Judicial Magistrate Ist Class, Amritsar, and he had conducted her medico-legal examination, observing in as much as three injuries; injury No.1, 2, 3 were kept under observation for x-ray and nature of weapon used was to be declared after x-ray report. He stated that after receipt of x-ray report, he had declared injuries No.1 and 3 as simple and injury No.2 as grievous in nature. He gave duration of injuries as within 5 to 7 days, which, does not commensurate with the plea that the incident in which Kartar Kaur had suffered injuries, had taken place on 22.3.2003, since, going back 5 to 7 days, as per medical evidence the injuries had been suffered either on 26.3.2003, 25.3.2003 or 24.3.2003. In his cross-examination, he stated that the possibility of such injuries having been caused with friendly hand, can not be ruled out and the patient had not produced before him any record of her previous treatment or stitching of injuries. He further stated that the history of cause of injuries was not disclosed to him by the patient. Under the circumstances, the case of complaint comes out to be highly improbable and unconvincing."
The trial Court also noticed that FIR stood recorded on a complaint made by Bikramjit Singh against Surjit Singh, Sakattar Singh, Makhtool Singh, Lakhwinder Singh, Darshan Singh (complainant) etc. for causing injuries to Gurnam Singh and Lovekanwaldeep Singh. It was also Criminal Misc. No. A-118-MA of 2013 (O&M) 7 noticed that as per version of Dr. Ashwani Kumar Sondhi (PW.3), injuries on the person of Kartar Kaur may be the result of a friendly hand. Statement of the alleged eye witness, namely Darshan Singh (PW.1) was also discarded by giving valid reasons in paragraph No.,15 of the judgment, under challenge. The view propounded by the trial Court is perfectly justified and is 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. Criminal Misc. No. A-118-MA of 2013 (O&M) 8
In Mrinal Das & 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:
"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
Court shall be reluctant to interfere with such judgment of
acquittal.
Criminal Misc. No. A-118-MA of 2013 (O&M) 9
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 favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and Criminal Misc. No. A-118-MA of 2013 (O&M) 10 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 applicant has failed to indicate any error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
This application is also barred by 73 days in filing. No ground is made out to condone the delay in filing the application as well.
Hence, both the applications viz. Criminal Misc. No. A-118-MA of 2013 and Criminal Misc. No. 13491 of 2013 are dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge March 21, 2013 "DK"