Punjab-Haryana High Court
State Of Haryana vs Pardeep And Another on 11 February, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-756-MA of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM -A 756-MA of 2010
Date of Decision: February 11, 2013
State of Haryana
... Petitioner
Versus
Pardeep and another
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr.Sandeep S. Mann, Sr. DAG, Haryana,
for the petitioner.
None for respondent No.1.
Mr. B.S. Virk, Advocate,
for respondent No.2.
Paramjeet Singh, J.
The instant application has been filed under Section 378(3) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 08.03.2010 passed by the learned Additional Sessions Judge, Sirsa, whereby respondents have been acquitted of the charges framed against them under Sections 392, 392/397 and 401 of the Indian Penal Code. Respondent No.1 - Pardeep, however, has been convicted under Section 25 of the Arms Act.
CRM A-756-MA of 2010 2
Brief facts of the case are that on 13.01.2009, Assistant Sub Inspector Satbir Singh along with EHC Baljeet Singh, Amit Kumar, C. Balbir was present in the area of Railway Station, Uklana Mandi. In the meantime, complainant Satpal Goyal met the police party and got recorded his statement to the effect that on 13.01.2009 at about 8.30 p.m., when he was maintaining accounts of his shop, then two young boys with muffled faces entered his shop and one of them put a pistol on his chest and second boy closed the door of the shop from inside. The boy having pistol asked him to hand over all his belongings. The assailants got opened the cash box by intimidating him and one hag having name of his firm `Sri Niwas Mittal', containing Rs.5200/- was removed by the accused persons. They also snatched Nokia Mobile Phone No. 94166-49165 from his hand and broke the telephone wire. Later one, he came to know that one motor cycle bearing registration No. HR-20N-1459 was also stolen from Aggarwal Sewa Sadan, Uklana Mandi which belonged to Neeraj. The complainant also stated that he could recognize those boys, if produced before him. Later on, when he raised an alarm, Surinder Kumar, who is member Panch and neighbour reached at the spot. On the basis of the statement of the complainant, formal FIR was registered. During investigation, accused Pardeep suffered disclosure statement, admitting his guilt in the present case and thereafter got recovered pistol of .12 bore, one live cartridge and Rs. 1350/- from his house. Anil @ Banti suffered disclosure staement confessing his guilt and thereafter got recovered Rs.800/-. Shankar accused also suffered disclosure statement confessing his guilt and got CRM A-756-MA of 2010 3 recovered Rs.1300/- from his house. Bimal @ Petu also suffered disclosure statement and got recovered a bag and Rs.1050/- from his house. Accused Bimla @ Petu was declared juvenile vide order dated 2.4.2009 of learned Trial Court. After completion of investigation, challan against the accused Pardeep, Anil and Shankar was presented in the Court. Thereafter, charge was framed against the accused under Sections 392 IPC and 392 IPC read with Section 397, 401 IPC and in addition accused Pardeep was also charge sheeted for the offence under Section 25 of the Arms Act, to which they pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW1 ASI Bhoop Singh, PW2 EASI Devinder Singh, PW3 ASI Om Parkash, PW4 complainant Satpal Goyal, PW5 Rinku Sharma, PW6 Nihal Singh, PW7 ASI Satbir, PW8 DSP Jagbir Singh, PW9 ASI Daya Nand and PW10 SI Dharam Singh.
Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. They denied the same and pleaded innocence.
The learned Trial Court, after appreciating the evidence, accused-respondents were acquitted of the charges framed against them under Sections 392, 392/397 and 401 of the Indian Penal Code, however, respondent No.1 - Pardeep has been convicted under Section 25 of the Arms Act and another co-accused Anil has been convicted under Sections 392 IPC and 392/397 IPC vide judgment dated 17.08.2012. Hence, this application for grant of leave to appeal.
CRM A-756-MA of 2010 4
I have heard learned counsel for the parties and gone through the impugned judgment also.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"16. There is recovery of Rs.1350/- from accused Pardeep and Rs.1300/- from Shankar in pursuant to their disclosure statement Ex.P14/A and Ex.P16 respectively. Recovery of Rs.1350/- is in the shape of nine currency notes of Rs.100/- each and nine currency notes of Rs.50/- denomination each taken in possession vide recovery memo Ex.p24 from Pardeep. It is observed that the amount recovered could not be connected with the robbed property/robbed amount of Rs.5200/-. Hence, the recovery of Rs.1350/- from Pardeep would not connect him with the present crime. Similarly the recovery of Rs.1300/- in the shape of five currency notes of Rs.100/- each 15 currency notes of Rs.50/- from accused Shankar on 25.1.09 taken in possession vide recovery memo Ex.P20 would also be of non identifiable currency amount/cash amount and he could not be connected with the present robbery. The amount recovered is meager and can be possessed even by a labourer. Even at the initial state, the complainant did not mention the nature of the robbed amount as to how many currency notes were of the denomination of Rs.100/- or above and how many currency notes were below the denomination of Rs.100/-. The numbers of currency notes were not noted. Recovery of cash amount from Shankar and Pardeep is not of identifiable articles, so the prosecution is failed to connect them with CRM A-756-MA of 2010 5 present case of robber.
17. ..... However, the prosecution failed to produce admissible incriminating evidence to link accused Pardeep and Shanker with the present robbery, hence, both of them are given benefit of doubt under Section 392 IPC 392/397 IPC and acquitted under these sections.
18. Now taking up the charge under Section 401 IPC, it is observed that the prosecution could not adduce any evidence that the accused are member of a gang indulged in habitual committing robbery and theft. No previous record of their conviction in similar offences of theft or robbery or they were operating as gang could be adduced, so as to attract ingredient of section 401 IPC. So, all the accused are acquitted under Section 401 IPC."
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-CRM A-756-MA of 2010 6
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 & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble 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 CRM A-756-MA of 2010 7 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 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 CRM A-756-MA of 2010 8 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."
Learned State counsel has failed to show any error in law or facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
February 11, 2013 [Paramjeet Singh] vkd Judge