Punjab-Haryana High Court
Rajinder Pal Singh vs State Of Punjab And Others on 5 February, 2013
Bench: Jasbir Singh, Inderjit Singh
CRM-A No. 555-MA of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRM-A No. 555-MA of 2011
Date of decision : 5.2.2013
Rajinder Pal Singh ........Applicant-appellant
Vs.
State of Punjab and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. D.S. Pheruman, Advocate, for the applicant-appellant
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Jasbir Singh, J.
The applicant-complainant, who, during trial, had not supported case of the prosecution, has filed this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal against judgment dated 31.3.2011 vide which respondents No. 2 to 12 were acquitted of the charges framed against them.
The above named respondents were arrayed as accused in FIR No. 131 dated 7.6.2007 Police Station Sadar Ferozepur, for commission of offences under Sections 302, 307, 148, 447 read with Section 511 and 149 IPC. It was an allegation against them that they, on 7.6.2007, had caused fire arm injuries to the applicant-complainant, his father Malkiat Singh (deceased) and his mother Tejinder Kaur.
The trial Judge has noted the following facts from statement made by the applicant-complainant Rajinder Pal Singh (PW-15) :-
"That he is agriculturist by profession. His father Malkiat CRM-A No. 555-MA of 2011 -2- Singh has dispute with his brothers Amar Singh and Pirthi Singh and nephews Gulzar Singh and Rassal Singh regarding land measuring 84 kanals 10 marlas situated at village Mohkam Bhatti. They (complainant party) are in possession of the said land. Civil litigation qua the said land is pending between the parties. The High Court has put restraint on the alienation of said land, but his uncle Amar Singh had executed a sale deed regarding 20 kanals 12 marlas in favour of Joginder Singh. They have moved application before the Tehsildar, Ferozepur for not sanctioning of mutation; whereas, the accused were insisting for delivery of possession. He (complainant) heard noise of tractors out side the Dhani; whereupon, he went to the first floor of his house and saw that Karaj Singh, Channa Singh and Jaswant Singh were ploughing the disputed land with different tractors. Harpreet Singh and Rajwant Singh were spreading seed in the land. Gurdev Singh and Sukhdev Singh armed with .12 bore rifles, Gurdev Singh armed with dang, Raju armed with Kirpan, Rassal Singh armed with .12 bore gun, Gulzar Singh armed with a sela and 15/20 other persons were standing there. He (complainant) came down and told about it to his father Malkiat Singh and mother Tajinder Kaur. They all came at the spot and stopped the accused from ploughing the land. Since the accused were many persons so parents of the complainant told that they will make them understand. At about 7.30 A.M., Balwinder Singh armed with .12 bore gun, Joginder Singh armed with .12 bore gun, Sukhwinder Singh armed with .315 bore rifle, Amar Singh armed with .12 bore rifle and Gurcharan Singh armed with kirpan came at once out of the tubewell room. Gurcharan Singh raised a lalkara that Malkiat Singh etc. be taught a lesson for not delivering the possession; whereupon, he (complainant) asked his parents to come out and then they turned back. In the mean time Joginder Singh CRM-A No. 555-MA of 2011 -3- and Balwinder Singh fired two gun shots with an intention to kill Malkiat Singh. Accused Sukhdev Singh also fired from his .315 bore rifle at the back of Malkiat Singh; whereupon, Malkiat Singh fell down. Then Amar Singh fired a shot which hit right ear of mother of the complainant. She also fell down. When he (complainant) went towards his parents to pick them up then Gurdev Singh fired gun shot with an intention to kill the complainant and the gun shot hit him on his right shoulder. Then the complainant ran to save him and Sukhdev Singh fired a gun shot hitting right lower leg of the complainant. When the complainant raised hue and cry, his other family members came there; whereupon, the accused went away with their arms and vehicles. The complainant and his wife saw that Malkiat Singh has died and his mother Tejinder Kaur was seriously injured."
It is case of the prosecution that relatives of the complainant took Tejinder Kaur to the Civil Hospital at Ferozepur for treatment. The applicant-complainant (PW-15) went to inform the police. His statement was recorded by Inspector Sarabjit Singh (PW-7), who sent an intimation to the police station, whereupon, above mentioned FIR was recorded against the respondents-accused. The Investigating Officer, thereafter, went to the place of occurrence, prepared inquest report upon the dead body and sent it for post mortem examination. He also got prepared a rough site plan of the place of occurrence with correct marginal notes. He also took into his possession blood stained earth and other offending material against recovery memos. He also recorded statements of the witnesses and on completion of investigation, presented the final report in Court. Copies of the documents were supplied to the respondents-accused CRM-A No. 555-MA of 2011 -4- as per norms. Case was committed to the competent Court for trial. The respondents-accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 16 witnesses and also brought on record documentary evidence to prove its case.
It is necessary to mention here that the final report was filed in Court against 5 accused. Others were found innocent and their names were put in Column No. 2. However, they were summoned to face trial on an application moved by the prosecution under Section 319 Cr.P.C.
The applicant-complainant Rajinder Pal Singh (PW-15) and his mother Tejinder Kaur, the injured, (PW-16), did not support case of the prosecution. Rather PW-16 propagated a different version in which death of Malkiat Singh was caused. It was stated by both the above witnesses that unidentified persons had caused fire arm injuries to the deceased. The Public Prosecutor closed prosecution's evidence on 31.3.2011. Thereafter, separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating circumstances appearing against them on record, were put to them, which they denied, claimed innocence and false implication. They did not produce any evidence in defence.
The trial Judge on appraisal of evidence found the respondents-accused not guilty and accordingly, they were acquitted of the charges framed against them. Hence, this application.
Counsel for the applicant has vehemently contended before us that the Presiding Officer was under transfer and the case was fixed for recording evidence of prosecution for 9.4.2011. The case was preponed and under duress, statements of the applicant-complainant Rajinder Pal CRM-A No. 555-MA of 2011 -5- Singh (PW-15) and his mother Tejinder Kaur (PW-16) were recorded, resulting into acquittal of the respondents-accused.
Taking note of above argument, we have perused record of the lower Court. It is on record that before 21.3.2011, statements of about 14 prosecution witnesses had already been recorded. On 21.3.2011 following order was passed by the trial Court :-
"Three PWs present and since two of the witnesses are not feeling well, so their statements recorded separately whereby they are bound down to appear in the court on 31.3.2011, 4.4.2011 and 9.4.2011. All the accused who are on bail are also directed to be present on each and every date of hearing and undertaking to that aspect has been taken from them in order to avoid any chance for adjourning the case due to non appearance of any of the accused. Doctor Parwinder Kaur not served. Let she be summoned through Special Messenger as well as through mobile phone for 31.3.2011 for which summons be issued and handed over to the Naib Court concerned against proper receipt today itself."
From the above order, it is clear that the case was adjourned by the trial Court to three dates i.e. 31.3.2011, 4.4.2011 and 9.4.2011 for recording prosecution evidence. There is nothing on record to show that case was preponed, as alleged. It was taken up on 31.3.2011. Applicant- complainant Rajinder Pal Singh (PW-15) and his mother Tejinder Kaur (PW-16) failed to support case of the prosecution. Despite cross examination, the Public Prosecutor failed to elicit anything favourable.
Facing with the situation, counsel for the applicant- complainant said that a false case under Section 376 IPC was got recorded CRM-A No. 555-MA of 2011 -6- against the complainant and his son. Under that pressure, both the witnesses had resiled from their statements.
Perusal of the grounds of appeal clearly shows that when evidence was recorded on 31.3.2011, the said FIR stood already cancelled by the competent authority. It is on record that an FIR No. 93 dated 4.5.2010 was recorded at Police Station City Ferozepur against the applicant-complainant and his son. On objection raised, fresh enquiry was conducted by an officer of the rank of DSP and on receipt of report, the Chief Judicial Magistrate, Ferozepur, vide order dated 30.3.2011, had cancelled the said FIR. The argument, that the witnesses were under threat, appears to be imaginary. Otherwise also, if the witnesses were under threat, it was their duty to brought it to the notice of the Presiding Officer of the Court or the Sessions Judge concerned, but nothing was done in that regard.
The trial Judge noting that main witnesses of the prosecution have failed to support its case, granted benefit of acquittal to the respondents-accused. It is on record that the applicant-complainant Rajinder Pal Singh (PW-15) and his mother Tejinder Kaur (PW-16) failed to identify the respondents-accused in Court. It was stated by them that all the assailants were with muffled faces. It was specifically stated by above named witnesses that the accused named in the FIR, who were facing trial, were not the persons who had cultivated their land forcibly and killed Sh. Malkiat Singh.
Counsel for the applicant has failed to raise any other argument and also to show to the Court that any vital piece of evidence CRM-A No. 555-MA of 2011 -7- was not considered by the trial Judge when acquitting all the respondents- accused. The trial Judge has given valid reasons in giving benefit of acquittal to the respondents-accused.
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 & 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 CRM-A No. 555-MA of 2011 -8- 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.
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 CRM-A No. 555-MA of 2011 -9- 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 applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 5.2.2013 Ashwani